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LIVES 



CHIEF JUSTICES OF ENGLAND. 




LORD KKNYON. 

Fr::)in a painting by Sir T. La\\Tence, 



THE LIVES 



OF 



THE CHIEF JUSTICES 



OF 



ENGLAND. 



BY 

LORD CAJMPBELL, 

AUTHOB OP 

'1SS. UVES OP THE LORD CHANCELLORS OP KNGLAKD." 



IN FOUR VOLUMES. 
VOL. IV. 



NEW-YORK: 
JAMES COCKCROFT & CO 

187.^ 



^^2-1 fO 




LIST OF ILLUSTRATIONS. 

PAGE 

L-so Chief Justice Kenyon, . . . Frontispiece. 

Lady Kenyon, .... i 

Lord Chief Justice Ellenborough, . . , .113 

LoKD Chief Justice Tenterden, .... tj? 



CONTENTS 



OF 



THE FOURTH VOLUME. 



CHAPTER XL I. 

LIFE OF LORD KENYON, FROM HIS BIRTH TILL HE WAS AP- 
POINTED CHIEF JUSTICE OF CHESTER. 

Composition of this Memoir an unpleasant task for the biographer, i. 
Family of the Kenyons, 2. Birth of Lord Kenyon, 3. His defective 
education, 3. He is apprenticed with an attorney. 3. His love of the 
desk, 4. His attempt to rival the Welsh bards, 4. His disappointment 
in not being taken into partnership with his master, 5. He is admitted 
a student at the Middle Temple, 6. His misfortune in not being re- 
quired to be initiated in liberal studies, 6. His exclusive attention to 
law, 7. His dislike of the theater, 7. He writes reports of decisions of 
the Courts, 7. He is acquainted with Home Tooke and Dunning, 8. 
His economical mode of dinirig, 8. He is called to the bar, 8. His slow 
progress, 9. He fags for Dunning, 9. He becomes a great case-answerer, 
■ 10. His merits as a draughtsman, 10. He fags for Lord Chancellor 
Thurlow, 10. He is made Chief Justice of Chester, 11. 

CHAPTER XLII. 

CONTINUATIOJSr OF THE LIFE OF LORD KENYON TILL HE WAS 
APPOINTED MASTER OF THE ROLLS. 

He is introduced into Parliament, 12. His impatience to meet a charge 
of bribery, 12. He is counsel for the defendants in the prosecution for 
deposing Lord Pigot, 13. How he came to be counsel with Erskine for 
Lord George Gordon, 13. His successful cross-examination of a witnesa, 
14. His miserable speech to the jury, 14. Peril to the prisoner, 16. Glory 
of Erskine, 17. Kenyon Attorney General to the Rockingham Admin- 
istration, 17. His altercation with Sir James Mansfield, iS. His zeal 
against public accountants explained, 19. He adheres to Lord .Sh&l- 
burne, 21. He is turned out by the " Coalition," 22. His pari iamentiry 



viii CONTENTS. 

conduct while in opposition, 22. Dismissal of the " Coalition Ministry," 
23. Kenyon again Attorney General, 24. He renews his attack on 
public accountants, 24. His conduct, as Chief Justice of Chester, in the 
Dean of St Asaph's case, 25 

CHAPTER XLIII. 

CONTINUATION OF THE LIFE OF LORD KENVON TILL HE WAS 
APPOINTED CHIEF JUSTICE OF THE KING'S BENCH. 

Kenyon is made Master of the Rolls, 27. His vote in the Westminster 
election, 28. The bad advice he gave respecting the " Scrutiny,'" 28. 
Honorable conduct of Lord Eldon on this occasion, 29. Mr. Fox's cen- 
sure of the Master of the Rolls, 29. Kenyon is made a Baronet, 30. Sir 
Lloyd Kenyon and RoUiad, 31. Letter from Sir Lloyd Kenyon to the 
High Bailiff of Westminster, 32. Kenyon as an Equity Judge, 34, Q. 
How far a covenant to refer to arbitration may be pleaded in bar to a 
suit or action ? 36. Sir Lloyd Kenyon's merits as an Equity Judge, 37. 
Resignation of Lord Mansfield, 37. Sit Lloyd Kenyon appointed his 
successor, and raised to the peerage, 39. 

CHAPTER XLIV. 

LORD KENYON AS CHIEF JUSTICE OF THE KING'S BENCH. 

Unpopularity of the appointment, 40. Lord Kenyon takes his seat in the 
House of Lords, 40. His speech on Ihe insanity of George IIL, 41. 
He maintains that Mr. Hastings's impeachment had abated by the dis- 
solution of Parliament, 42. He opposes Mr. Fox's Libel Bill, 43. Ques- 
tions proposed by him for the opinion of the Judges, 44. Lord Stanhope's 
speech to banter Lord Kenyon, 44. Lord Kenyon's answer, 45. Charge 
that he made a pecuniary profit by the abuses in the King's Bench 
Prison, 46. Lord Kenyon's improved tactics in self-defense, 47. His 
judicial character, 48. His Latin quotations, 48. His bad temper, 49. 
Account of his demeanor in Court by Espinasse, 49. His partialities and 
antipathies, 49. George III.'s congratulation to him on the loss of his 
temper, 50. His anxiety for the rights of the "legal estate,'' 51. His 
decision that no action at law can be maintained for a legacy, 51. Rule 
that a married woman shall never be permitted to sue or to be sued as a 
single woman, 51. His behavior on the trial of Rex v. Stockdale, 52. 
His severe sentences in prosecutions of alleged sedition, 54. Pasquinade 
against imprisonment for debt, 54. John Frost's case, 54. Rex v. Perry, 
55. Perversion of the clause in the Libel Bill enabling the Judge to give 
his opinion to the Jury on matter of Law, 56. Stone is tried for treason 
before Lord Kenyon, 57. Trial of John Reeve for a libel on the House 



CONTENTS. ix 

of Commons, 58. Trial of Gilbert Wakefield, 59. Trial of the proprietor 
of the Courier for a libel on the Emperor Paul, 61. Trial of Williams for 
publishing Paine's Age of Reason, 62. Lord Kenyon's display of his 
knowledge of ecclesiastical history, 62. Trial of Hadfield, when the 
biographer first saw Lord Kenyon, 62. Proof of the prisoner's insanity, 
63. Lord Kenyon interferes and puts an end to the trial, 64, Sound 
view of the question how far mental disease exempts from criminal re- 
sponsibility, 64. Benjamin Flower's case, 65. Dialogue between Mr. 
Clifford and Lord Kenyon on moving for a writ of Habeas Corpus, 66, 
Lord Kenyon's attack on Lord-Treasurer Clifford and the ancient no- 
bility, 67. Mr. Clifford's retaliation, 67. Lord Kenyon laid down the 
true constitutional doctrine since affirmed by act of Parliament respecting 
the power of the two Houses to print and publish, 68. Rex v. Earl of 
Abindon : Peer not priviledged to publish speech delivered by him in the 
House of Peers, with a view to libel an individual, 69. Doctrine of con- 
sequential damage, 70. Rescue of the public from the Surveyors, 71. 
Lord Kenyon's laubable zeal against manufacturers of slander, 71. Mis- 
led by his love for morality, 73. Lord Eldon's protest against Lord 
Kenyon's ultraism, 74. Lord Kenyon's indignation at being called a 
" legal monk," 75. By his hot temper, betrayed into the toleration of in- 
solence, 75. Lord Chief Justice Kenyon kicked by John Home Tooke, 
76. Erroneous decisions of Lord Kenyon, 8l. Criminal information for 
&jeu d'esprit, 81, Lord Kenyon overruled in Haycraft v. Creasy, 83. 
Lord Kenyon's fury against forestallers and regraters, 84. 

CHAPTER XLV. 

CONCLUSION OF THE LIFE OF LORD KENYON. 

Lord Kenyon's career about to close, 88. Death of his eldest son, 88. Lord 
Kenyon's last illness, 88. His death and burial, 89. His epitaph, 89. 
Touching praise of him by his second son, 89. Character of Sir Leoline 
Jenkins applied to him, 89. Discrimination required in his biographer, 
90. His popularity with common juries, 90. His ill-usage of attorneys, 
go. Ruin of Mr. Lawless, gi. Lord Kenyon serviceable in repressing 
pettifogging, 92. His kindness to students, 92. He is rebuked by Thur- 
low for disparaging the Court of Chancery and solicitors, 93. The 
student's ink-bottle and the Chief Justice's porcelain vase, g2. Lord 
Kenyon's eulogy on George TIL, 93. His opinion given to George III. 
respecting the Catholic question, 93. Lord Kenyon for a severe penal 
code, but not a " hanging judge," 95. Specimen of Lord Kenyon's love 
of mixed metaphors 96. Lord Kenyon's Reports, 96. His facetiae, 97. 
His penurious mode of life, 97. His villa at Richmond, g8. His dress, 
gg. His will directing his executors to avoid the expense of a diphthong, 
99. His descendants, lol 



CONTENTS. 



CHAPTER XLVI. 

LIFE OF LORD ELLENBOROUGH FROM HIS BIRTH TILL HIS MAR- 
RIAGE. 

T -elings of the biographer in commencing the Life of Loid EUenborough, 
;?2 His family, 102. His birth, 103. His education, 104. At the 
Charter-house, 104. At Cambridge, 105. His choice of a profession, 
»07. He studies the law, 108. His diligence in a special pleader's office, 
708. He practices as a special pleader under the bar, no. His success, 
no. He is called to the bar, ni. He joins the Northern Circuit, 112. 
His slow progress in London, 114. His silk gown delayed by his sup- 
posed whiggery, 114. Law in domestic life, 115. His courtship, 115. 
His marriage, 116 

CHAPTER XLVII. 

CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILI HE 
WAS APPOINTED ATTORNEY GENERAL. 

He his retained as leading counsel for Warren Hastings, 117. His prepara- 
tion for the trial, 120. His speech for Hastings, 120. His contests with 
Burke and the other managers on questions of evidence, 122. Debi Sing's 
case, 126. Law's opening of the defense, 131. His prooemium and 
peroration on the Begum charge, 133. Peroration, 136. Conclusion of 
Hastings's trial, 141. Authorship of the epigram on Burke, 141. Law's 
great advance in business from his fame as counsel for Hastings, 142. He 
resents Lord Kenyon's ill usage of him, 142. He is opposed to Erskine 
in Rex v. Walker, 144. Prosecution of Redhead Yorke, 145. Law's 
triumph over Sheridan, 147. Law reconciled to the Tories, 150. His 
readiness to fight, 151. 

CHAPTER XLVII I. 

CONTINUATION OF THE LIKE OF LORD ELLENBOROUGH TILL HE 
WAS APPOINTED LORD CHIEF JUSTICE. 

He is made Attorney General, 152. Rev. John Home Tooke, M.P., 154. 
Governor Wall's Case, 156. Illness of Lord Kenyon, 161. Law is made 
Chief Justice of England and a Peer, 161 



CONTENTS. 



CHAPTER XLIX. 

CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL HB 
BECAME A CABINET MINISTER. 

His qualifications as a Judge, 163. His puisnes, 164. His conduct as 
Chief Justice, 164. Lord Ellenborough's decisions, 166. Validity ol 
deeds of separation, 166. Action for Ctim. Con., notwithstanding deed 
of separation, 167. No implied warranty from high price of goods, 167. 
Liability for publication of a libel in England by order of persons living 
out of England, 168. English underwriters not liable for embargo put 
on by the Government of the assured 169. Validity of marriage of illegiti- 
mate minor, 169. Case of the Hottentot Venus, 170. Liability ol 
captain of a ship of war for damage done by her negligent management, 
170. Lord EUenborough supposed to be influenced by his love of lobster 
sauce, 171. May the executor of a lady maintain an action for breach 
of promise of marriage ? 172. Maya trespass committed in fox-hunting 
be justified? 173. Illegality of cock-fighting 174. Consuls not privi- 
leged as public ministers, 174. Privilege of House of Commons to im- 
prison for contempt, 175. Doubtful doctrine in Rex v. Creevey, 176. 
Freedom of literary criticism, 177 Trespass by balloons considered, 178. 
Privilege of counsel to criminate an attorney, 179. Award of trial by 
battle on an appeal of murder, 180. Lord EUenborough in the House of 
Lords, 181. His maiden speech, l8i. His exposure of the Athol job, 
182, Right of the Crown to the military services of all subjects, 185. 
His hostility to the Roman Catholics, 186. Trial of Colonel Despard for 
treason, 187. Trial of Peltier for a libel on Napoleon Buonaparte, 190. 

CHAPTER L. 

CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL 
THE TRIAL OF LORD COCHRANE. 

The Chief Justice a member of the Cabinet, 193. Impeachment of Lord 
Melville, 202. Dissmissal of "All the Talents," 203. Lord Ellen- 
borough's speech on the restoration of .the Danish fleet, 204. His alterca- 
tion with Lord Stanhope, 205. Lord EUenborough and the " Delicate 
Investigation," 214. Lord EUenborough a member of the Queen's 
Council, as Custodian of the King's person during the Regency, 222. 

CHAPTER LI. 

CONCLUSION OF THE LIFE OF LORD ELLENBOROUGH. 

Trial of Lord Cochrane, 227. Trial of Dr. Watson for high treason, 229. 
Lord EUenborouffh's tour on the Continent, 231. His prayer when his 



xii CONTENTS. 

health and strength were declining, 233. Trial of William Hone, 232. 
He is unable to go the Summer Circuit, 234. Lord Ellenborough re- 
signs his office, 237. Complimentary letter to him from the Prince Re- 
gent, 237, Hisdeath, 239. His epitaph, 240. His character, 240. Lord 
Ellenborough's Act, 241. His approval of a severe penal code, 241. 
His dislike of foreign laws, 244. His facetia;, 245, Lord Ellenborough 
in domestic life, 250. His figure and manner, 251. Imitation of the Chief 
Justice by Charles Matthews the comedian, 251. His portrait by 
Lawrence, 253. His style of living, 253. His children, 254. 

CHAPTER LII. 

LIFE OF LORD TENTERDEN. FROM HIS BIRTH TILL HIS ELEVATION 
TO THE BENCH. 

Diiadvantages and advantages in the task of writing this Memoir, 255. 
Lord Tenterden's father and mother, 256. Birth of Lord Tenterden, 257. 
His early education, 257. Lord Tenterden at Canterbury school, 257. 
Danger he ran in his fourteenth year, 259. Q. whether he was to be a 
hairdresser or a Chief Justice ? 259. He is sent to the- University, 261. 
He obtains a scholarship at Corpus, 262. His diligence and good con- 
duct, 263. His prize poem, 265. His prize essay, 269. His Bachelor's 
degree, 271. His horsemanship, 272. He is appointed College tutor, 
272. His acquaintance with Judge Buller, 272. He is entered of the 
Temple, 276. His industry as a law student, 276. He practices as a 
pleader under the bar, 277. He is called to the bar, 278. His success 
on the Oxford circuit, 278. The accident he met with, 279. His book 
on Shipping, 280. His business at Guildhall, 281. His large income, 

282. His incompetency as an advocate, 282. His chief effort in oratory, 

283. His conduct as Attorney General in the Grand Circuit Court, 284. 
His marriage, 285. His wife, 286. His desire to be made a Judge, 288. 
He is disappointed, 288. 

CHAPTER LIII. 

CONTINUATION OF THE LIFE OF LORD TENTERDEN TILL HE WAS 
ELEVATED TO THE PEERAGE. 

He is a puisne in the Common Pleas, 290. He is transferred to the King's 
Bench, 292. He becomes Chief Justice of England, 295. Extraordinary 
excellence of the King's Bench as a Court of Justice while he presided 
over it, 297. His great merit as a Judge, 2g8. His subjection under a 
favorite counsel, 300. His discretion in avoiding disputes about Jurisdic- 
tion, 303. His decisions. — The pnblic have no common law right to the 



CONTENTS. X'-i 

use of the sea-shore for bathing, 303. No action lies for pirating .<i ob- 
scene book, 307. His defense of the English doctrine of high \«<ason, 

307. Libelous to say falsely that the Sovereign is afflicted with insanity, 

308. Q. Whether the person who hires horses, with a driver, to draw his 
carriage for the day, is liable for the negligence of the driver? 310. The 
Cato-street conspiracy, 312. Improper proceeding in trying to forbid the 
publication of trials for treason till they are all concluded, 313. The Chief 
Justice's dislike of technical niceties, 314. Doubtful decisions by him 
314. His propensity to suspect fraud, 315. His doctrine about " care 
and caution"in taking negotiable securities overruled. 515. Q. Whether 
it would have been for his reputation that he had died a commoner? 315. 

CHAPTER LIV. 

CONCLUSION OF THE LIFE OF LORD TENTERDEN. 

His degradation to the peerage, 218. Ceremony of his taking his sei>' in 
the House of Lords, 320. His maiden speech, 321. He opposes the 
repeal of the Corporation and Test Acts, 323. He apposes the Bill for 
Catholic Emancipation, 325, He opposes the Anatomy Bill, 327. He 
opposes the Bill for taking away capital punishment for forgery, .^28. 
His efforts for amending the law, 329. His measure respecting prescrp- 
tion and tithes, 330. His sound views respecting parli amentary privilefl;e, 
332. He opposes the Reform Bill, 333. His last speech in the Hoi'se 
of Lords, with his vow never again to enter the House if the Reform B'U 
passed, 334. His health declines, 337. His last circuit, 338. The lorg 
vacation before his death, 338. His last appearance in court, 338. His 
death, 339. His funeral, 339. His epitaph, 339. His character and 
manners, 340. Compliment to him by the Lord Mayor of London, 34-?. 
His recollections of Canterbury, 342. Character of Lord Tenterden bT 
Lord Brougham, 344. By Mr. Justice Talfourd, 345. His love of dassio I 
literature and talent for making Latin verses, 347. Specimen* of h' i 
Latin poems, 349. Present representative of the Chief Justice, 3;t. 




i,ADV ki:nvon. 

From a nainting by Sir T. Lawrence. 



,v;^: '■■ 




LIVES 



CHIEF JUSTICES OF ENGLAND. 



CHAPTER XLI. 



■LIFE OF LORD KENYON, FROM HIS BIRTH TILL HE WAS 
APPOINTED CHIEF JUSTICE OF CHESTER. 

I BEGIN this Memoir at a time when I have the 
near prospect of being myself a CHIEF JUSTICE, 
and when I may calculate upon being subjected 
in my turn to the criticism of some future biographer.' 
On every account I wish to speak of Lord Chief Justice 
Kenyon in a spirit of moderation and indulgence. But 
I am afraid that my estimate of his character and judi- 
cial qualifications may call forth against me a charge of 
prejudice and detraction. Although till raised to the 
bench he was considered only " legulcius quidani, cautiis 
£t acictus," he was afterwards celebrated by dependents 
and flatterers as a GREAT MAGISTRATE, to be more hon- 
ored than the all-accomplished MANSFIELD. And from 
the stout resistance which then continued to be offered 
in Westminster Hall to all attempts to relieve the 
administration of justice from wretched technicalities, 
Lord Chief Justice Kenyon was long hailed as the Re- 
storer of the rigid doctrines to be deduced from the 
Year Books. 

He was indeed a man of wonderful quickness of per- 
ception, of considerable intellectual nimbleness, of much 
energy of purpose, and of unwearied industry ; — he be- 

' 12 October, 1849. — It had then been intimated to me by the Prime 
Minister that upon the resignation of Lord Denman, which, from his 
severe attack of paralysis, was daily expected, I should be appointed his 
successor. 

IV — I 



2 REIGJN OF GEORGE IJ. 

came very familiarly acquainted with the municipal law 
of this land ; he was ever anxious to decide impartially; 
and he was exemplary in his respect for morality and 
religion. But never having supplied by study the defects 
of a very scanty education, he was unacquainted with 
every portion of human knowledge except the corner 
of jurisprudence which he professionally cultivated ; he 
had not even the information generally picked up by the 
clever clerk of a country attorney from bustling about 
in the world ; of an arrogant turn of mind, he despised 
whatever he did not know, and, without ever doubting, 
bitterly condemned all opinions from which he differed; 
—giving way to the impulses of passion, he uncon- 
sciously overstretched the severity of our criminal code ; 
he never sought to improve our judicial system either 
by legislation or forensic decision ; and his habits of 
sordid parsimony brought discredit on the high station 
which he filled. It is impossible, therefore, that in trac- 
ing his career I should be able to abstain from some- 
times expressing regret and censure. I must thus incur 
the displeasure of some Englishmen who have been ac- 
customed bhndly to admire him, and of the whole Welsh 
nation, who [not from a penury of great men] worship 
him as an idol, and prefer him to their countryman 
Chief Justice Vaughan, who really was a consummate 
common-law judge, and to their countryman Sir Leoline 
Jenkins, who was both a profound civilian and a distin- 
guished statesman. But as Lord Kenyon actually was 
Chief Justice of England for fourteen years, — in the 
prosecution of my plan I must proceed, whatever perils 
I may encounter. 

One might have expected that we should have had a 
Kenyon pedigree extending to King ARTHUR, if not to 
Adam ; but although the family, when transplanted to 
the Principality, became intensely Welsh, this event hap- 
pened so recently as the commencement of the last cen- 
tury. In the reign of Charles II. the Kenyons were 
settled in Lancashire, one of them representing the 
borough of Clitheroe in the House of Commons, and 
another being deputy-governor of the Isle of Man under 
the Earl of Derby. The Chief Justice's grandfather, a 
younger brother without portion or profession, married 



LORD KEN YON. 3 

the heiress of a Mr. Luke Lloyd, a yeoman, who had a 
small estate at the Bryn, in the parish of Hanmer, in 
the county of Flint ; and their son, following a good ex- 
ample, gained, by marriage with the daughter of Mr 
Robert Eddowes, the small estate of Gredington, in th« 
same parish. He was now elevated to the rank of a 
country gentleman, and his name was inserted in thu 
commission of the peace for Flintshire — a distinction of 
which Lord Kenyon used often to boast. The squire 
or squireen, cultivated his own land, and in point of re- 
finement was little above the low level of the surround- 
ing farmers. He had a numerous family, whom he found 
it a hard matter to maintain and decently to educate. 

His second son, who was to confer such honor upon 
Gredington, was born there on the 5th of October, 1732, 
and, out of compliment to his maternal grandmother, 
was baptized by the name of Lloyd. This boy, though' 
rather of an irascible disposition, and accustomed, it is 
said, to beat his nurse with his little ftsts when she 
crossed him, early displayed very quick parts, and was 
very affectionate. Having been taught to read at a 
dame's school in the village, he was sent to the free 
grammar-school in the neighboring town of Ruthin, 
which had the reputation of being the best classical 
foundation in the Principality. Here he stayed long 
enough to acquire a little Latin in addition to his Welsb 
and English ; but he never knew even the Greek char 
acters, and of no other language had he a smattering 
except some law phrases in Norman French. He nevei 
advanced further in the abstract sciences than the " Rule 
of Three ;" and he is said piously to have believed to 
his dying day that the sun goes round the earth once 
every twenty-four hours. 

Of four brothers he was declared to be the 'cutest, and 
he was dedicated to the law ; but there was then no no- 
tion of his ever rising higher than being a Welsh attor- 
ney — advising the overseers of the adjoining parishes, 
and carrying on suits in the Court of Quarter SessFona 
for the county of Flint. Accordingly, at the age of 14, 
he was articled to Mr. Tomkinson, an attorney at Nant- 
wich ; and for five years he was taught to serve writs 
and to engross deeds. " Gracious Heaven!" exclaimed 



4 REIGN OF GEORGE II. [i74S— 

William Cobbett, who preferred enlisting as a common 
soldier to. such occupations, " if I am doomed to be 
wretched, bury me beneath Iceland snows, and let me 
feed on blubber; stretch me under the burning line, and 
deny me the propitious dews ; nay, if it be thy will, 
suffocate me with the infected and pestilential air of a 
democrat's club-room ; but save me, whatever you do, 
save me from the desk of an attorney." Lord Somers 
and Lord Macclesfield, although they submitted to the 
infliction, seemed to have felt the same disgust ; and 
they could only get through their years of apprentice- 
ship by purchasing books of elegant literature, and pre- 
paring themselves for the brilliant career to which they 
were destined. Young Kenyon was not only diligent 
and assiduous in doing his master's business, but was 
contented and happy, and never wished for a more 
amusing pastime than copying a long bill of costs, which 
gave the history of a lawsuit from the " Instructions to 
prosecute" to entering "Satisfaction on the Judgment 
Roll." He by no means confined himself to the mere 
mechanical part of his trade ; on the contrary, he 
thumbed a book explaining the practice of the courts, 
and he initiated himself in the mysteries of conveyancing, 
from which the profits of a country attorney chiefly 
arise. 

Once he was actually seduced to " pen a stanza." A 
brother clerk, of the name of Cadwallader, was an en- 
thusiastic votary of the muses, and twitted him with his 
degeneracy from his maternal ancestors, who had listen- 
ed with rapture 

" To high-born Heel's harp anc soft Llewellyn's lay." 

The blood of the Lloyds was warmed in his veins, and 
he declared that although he felt he could not equal 
Cadwallo, Urien, and Modred, who, he was told, made 
huge Plinlimmon bow his cloud-topped head, he should 
show that at least he had a Welsh heart. He took for 
his subject " Wynnstay," the seat of Sir Watkin Wil- 
liams Wynn, considered in North Wales as the repre- 
sentative of the Welsh I rinces— and thus he sung : — 

" There Watkin stood firm to Britannia's cause, 
Guard of her ancient manners and her laws, 
Oh, great, good man f borne on the wings of fame, 



I7S0-1 L'ORD KEN YON. S 

Far disant ages shall revere thy name ; 

While Clwyd's streams shall lave the verdant meads, 

And Snowdon's mountains raise their lofty heads ; 

Whila goats shall o'er thy hills, O Cambria, stray, 

And day succeed to night, and night to day. 

So long thy praise, O Williams, shall remain 

Unsullied, free from dark oblivion's chain." 

He was himself so much pleased with this composition 
that he sent it to Gredington, where it was loudly ap- 
plauded, although there was some apprehension lest, 
■' his parents' wishes doomed to cross," he might be led 
astray from his professional pursuits ; but when, en- 
couraged by this approbation, he showed the poem to 
his comrades in the office at Nantwich, he was for ever 
cured of his poetical propensity, for it was received with 
inextinguishable laughter. Long did "Clwyd's streams" 
resound in his ears, and a wicked wag reported that the 
original edition contained the couplet — 

"While cheese shall cheer the Cambro-Briton's sight, 
And carw dha} shall prove his chief delight." 

Kenyon never rhymed more, and it is believed that he 
never afterwards read a line of poetry during his whole 
life, except the metrical translation of the Psalms of 
David when he was at church. 

By his steadiness, intelligence, and uniform good con- 
duct, he was deservedly a great favorite with his master, 
and he fondly hoped that, to crown his ambition, he 
might be taken into partnership by this topping prac- 
titioner, and eventually succeed him. A negotiation for 
this purpose was actually opened, but Tomkinson be- 
haved ungenerously, demanding either a large premium, 
which the Kenyons could not afford to pay, or insisting 
on the young man being contented with a very small 
share of the profits, which would not have yielded him 
an income equal to 'that of a managing clerk. 

It so happened at this time his elder brother, then 
studying at St. John's College, Cambridge, died sud- 
denly, and it was thought that Lloyd, now heir to the 
small family estate, might aspire to the superior grade 
of the profession of the law. He himself would still 
have been satisfied with settling on his own account as 
an attorney at Ruthin, Denbigh, or any neighboring 
' "Good ale." The Welsh say that cervisia is derived from carw. 



6 REIGN OF GEORGE II. LirS"- 

to-.v/', where he would have been sure of soon getting 
into reputable practice by his own merit and his respect- 
/(.We connections: but he very submissively took the 
*dvice that was offered to him, and on the seventh day 
of November, 1750, he was admitted a student at the 
Middle Temple.' Happy had it been for his fame, and 
for the dignified administration of justice, if he had now 
been transferred to a university, where his manners 
might have been polished, his mind might have been 
(iberalized, and he might have acquired the moderate 
portion of knowledge expected in an English gentle- 
man. 

Surely before students are entered at the Inns of 
Court there should be a preliminary examination, to 
know whether they have acquired the elements of a 
liberal education. Such a regulation could not be com- 
plained of, like the exclusion of all who could not pro- 
duce a certificate from the Heralds' College of gentle 
birth. Leaving a free course to merit emerging from 
obscurity, it would guard the profession of the law from 
the intrusion of those who bring discredit upon it by 
their ignorance, and would protect the administration of 
justice from being perverted by vulgar prejudices haunt- 
ing the minds of those placed in high judicial stations. 
Kenyon, by a little preliminary training at this period 
of his life, might have been taught to correct or to sup- 
press his bad Latin, and might have escaped the peril 
which tarnished his judicial reputation, when, with 
furious zeal, he thought he was serving the public by 
laying down for law that a merchant was guilty of a mis- 
demeanor by purchasing commodities with the intent to 
sell them again at a profit. 

But he was at once transferred from his desk, in his 
master's office at Nantwich, to a small set of chambers 

' "Die 7 Novembris, 1750. 

" Ma' Lord Kenyon filius et Hjeres apparens Lloyd Kenyon de Greding- 
ton in comitatu Flint in principalitate Walliae armigeri admissus est in 
Societatem Medij Terapli London specialiter. 

" Et dat. pro ffine ....40 o." 

Examined -.opy from the books of the Middle Temple. In the Lives of 
Lord Kenyon hitherto published, it is said that his removal to London, 
»nd entrance at the Middle Temple, did not take place till 1755, although 
his printed reports of Cases decided in the Courts of Chancery and King'i 
Bench begin in 1753. 1 



t7S0-J LORD KEMYOy. 7 

on the fourth story in Brick-court, Middle Temple Lane. 
To the few books which he brought with him from the 
country, were now added Coke upon Littleton, RoUe's 
Abridgment, and Sheppard's Touchstone. But neither 
by the advice of others nor spontaneously, did he be- 
come acquainted with any author qualified to enlarge 
his understanding or to refine his taste. He had no sus- 
picion that his education had been defective, nor the 
slightest desire to take any knowledge except law for 
his province. 

Not having a university degree, it was necessary, ac- 
cording to the regulations then in force, that he should 
be five years a student before he could be called to the 
bar. During this long period he gave proof of un- 
wearied diligence and rigid self-denial. He pored over 
his law books day and night. Being once treated to 
the play, he declared sincerely that he found no pleasure 
in the performance, and it is said that he never was again 
within the walls of a theater till, having reached the 
dignity of Chief Justice, he was prevailed upon to visit 
Drury Lane, that he might see the famous melodrame 
PiZARRO ; when, falling asleep in the middle of the elec- 
trifying declamation against " avarice and ambition," 
Sheridan, the mortified author, vengefuUy exclaimed: 
" Alas ! poor man, he fancies himself on the bench." 

While yet a student at law, young Kenyon would in- 
dulge in the amusement of going to the office of Mr. 
Seckerson, an attorney, who was the town agent of his 
old master at Nantwich, reading the instructions for 
conducting pending suits, and seeing how business was 
prepared for the Courts at Westminster. By-and-by 
he diligently attended these Courts himself, and took 
copious notes of the arguments at the bar and of the 
judgments. His notes he methodized in the evening 
into respectable reports, which afterwards were very use- 
ful to him, and of which two volumes, containing cases 
from 1753 to 1739, were published in the year 1819, by 
his sons. I cannot much praise the style of the re- 
porter, for he was careless about grammar, and he had 
no notion of elegant composition ; but he shows that he 
perfectly well understood the points which were dis- 
cussed and decided. 



8 REIGN OF GEORGE II. [iTS^'- 

His finances being very limited, he kept account books- 
for many years containing entries of every single farthing 
which he expended. These are still preserved, and con- 
tain mysterious abbreviated items, which have given 
rise to much speculation and laughter, but I believe that 
they may be explained without the slightest slur being, 
cast upon his ever exemplary morals. Although the 
companions in whose society he chiefly delighted were 
those whom he met at Mr. Seckerson's, he made ac- 
quaintance in the Middle Temple Hall with some men 
who afterwards gained great distinction. Two of these 
were John Home Tooke and Dunning, who were allied 
to him by penury as well as genius. " They used gen- 
erally in vacation time to dine together at a small eating- 
house, near Chancery Lane, where their meal was sup- 
plied to them at the charge of "j^d. a-head.'" Tooke, irk 
giving an account of these repasts many years after, 
used to say, " Dunning and myself were generous, for we 
gave the girl who waited on us a penny a-piece, but 
iCenyon, who always knew the value of money, rewarded 
her with a halfpenny and sometimes with a promise." 
Kenyon, when elevated to the Bench, without owning 
to the manner in which he was supposed to have treated 
the maid, would very manfully point out the shop where 
he had been accustomed to dine so economically ; yet 
it is said he displayed evident signs of wounded pride 
when, under a subpoena, he was obliged in the Court of 
Common Pleas to prove the execution of a deed which 
he had attested while clerk to Mr. Tomkinson, at Nant- 
wich. 

Having eaten the requisite number of dinners in the 
Middle Temple Hall, on the 7th of February, 1756, he 
was called to the bar. But for many years he remained 
poor and obscure. He had no captivating powers tO' 
bring him suddenly forward, and it is recorded to his 
honor, that he never descended to any mean arts with a 
view to obtain business. For a long time had absolutely 
nothing to do in Westminster Hall. He laid himself 
out for conveyancing, and his Welsh connections gave 
him a little start in this line. His father furnished him 
with a Welsh pony, on which he rode the North Welsh 
' Steeven's Memoirs of Home Tooke. 



1756.] LORD KEN YON. 9 

Circuit, picking up a few half-guineas. He likewise at- 
tended the assizes at Shrewsbury and one or two other 
towns on the Oxford Circuit ; but these were only 3 
source of expense to him, which he could very il) 
afford. His resolution, however, was undaunted, and he 
felt that within him which assured him of ultimate 
success. — 

He never gained applause by any speech to a jury o> 
even by any brilliant argument to the court ; he was not 
only totally devoid of oratory, but he had no great 
power of reasoning ; although he knew with intuitive 
quickness what was the right conclusion upon any legal 
question, he had not the art of showing how, accord- 
ing to the rules of dialectics, this conclusion was to be 
reached. After he had been ten years at the bar, it is 
said that he was desirous of quitting the profession of 
the law and taking orders, but that he could not obtain 
a presentation to the small living of Hahmer, in the 
county of Flint, to which he aspired. 

His extraordinary merits as a lawyer were first discov- 
ered and developed, not by the public, nor by the judges, 
nor by the attorneys, but by a contemporary barrister. 
Dunning, instead of continuing to dine on cow-heel, 
shortly after being called to the bar was making thou- 
sands a year, and had obtained a seat in Parliament. He 
had many more briefs than he could read, and many 
more cases than he could answer. Kenyon became his 
fag, or in legal language his " devil," — and thus began 
the career which led to the Chief Justiceship. With 
most wonderful celerity he picked out the important 
facts and points of law which lay buried in immense 
masses of papers, and enabled thepopular leader to con- 
duct a cause almost without trouble as well as if he had 
been studying it for days together — and many hundreds 
of opinions which Dunning had never read were copied 
from Kenyon's MS. by Dunning's clerk and signed by 
Dunning's hand. The only return which Kenyon re- 
ceived was a frank when writing to his relations, 4Jid 
this courtesy had once nearly led to a fatal quarrel be- 
tween the two friends, for to the direction of a letter 
addressed to " Gredington, Flintshire," Dunning "ig. 
gishly added, " North Wales, near Chester." 1 1av» in- 



to REIGN OF GEORGE II. [i77=' 

suit to the Principality stirred up the indignation of the 
fiery Welshman, who exclaimed, " Take back your frank, 
3ir_I shall never ask you for another ;" and was flying 
dway in towering passion, but was at last appeased. 

It gradually oozed out in the profession that Dun- 
ning's opinions were written by Kenyon, and the attor- 
neys thought they might as well go at once to the foun- 
tain-head, where they might have the same supply of 
pure law at much less cost. Cases with low fees came 
in vast numbers to Kenyon, and so industrious and 
ready was he that they were all answered in a day or 
two after they were left at his chambers. He thus be- 
came a very noted case-answerer, and his business in the 
Court of Chancery gradually increased. One serious 
obstacle which he had to surmount was the brevity with 
which he drew deeds as well as bills and answers, for the 
profits of the attorneys unfortunately being in propor- 
tion to the length of the papers which pass through 
their hands, they are inclined to employ the most 
lengthy, rather than the most skillful draughtsman. But 
Kenyon refused to introduce any unnecessary recital, 
avoided tautology as much as possible, and tried to 
make the language he employed approximate to that of 
common sense. 

Still, however, he seemed destined to be eminent in 
his day only in that class of chamber-counsel who make 
a comfortable existence by their labor, and, like other 
tradesmen, are forgotten as soon as they die. Dunning, 
after having been a short time Solicitor General, having 
resumed his stuff gown and gone into hopeless opposi- 
tion, could not help him on, and without a powerful 
patron the honors of the profession were not within his 
reach. 

But his fortune was made by the elevation of Thurlow 
to the woolsack. This man of extraordinary capacity 
and extraordinary idleness, when called to sit in the 
Court of Chancery earnestly desired to decide properly, 
and even coveted the reputation of a great judge, but 
would by no means submit to the drudgery necessary 
for gaining his object, and as soon as he threw off his 
great wig he mixed in convivial society or read a maga- 
zine. To look into the authorities cited before him in 



1780.J LORD KENYON. 11 

argument, and to prepare notes for his judgments, Har- 
grave, the learned editor of Coke upon Littleton, was 
employed, but he was so slow and dilatory that the lion 
in a rage was sometimes inclined to devour his jackal. 
Kenyon, sitting in court with a very moderate share of 
employment, having once or twice, as amicus curies, very 
opportunely referred him to a statute or decision, was 
called in to assist him in private, and now the delighted 
Chancellor had in his service the quickest, instead of the 
most languid, of journeymen. He even took a personal 
liking for Kenyon, although in grasp of intellect, in 
literary acquirements, in habits of industry, in morals, 
and in every respect a striking contrast to himself. 
Laughing at his country, calling him by no other name 
than Taffy, holding up to ridicule his peculiarities, but 
knowing him to be a consummate English lawyer, he re- 
solved to reward him by raising him to the bench. 

A legal dignity falling in. Sergeant Davenport, who 
had strong claims on the Government and had met with 
many prior disappointments, thus applied for it, think- 
ing that by his laconic style he might adapt himself to 
Thurlow's humor : " The Chief Justiceship of Chester is 
vacant — am I to have it?" The reply was in the same 
taste : " No, by G — d ! Kenyon shall have it." 

On Kenyon it was spontaneously bestowed, to his in- 
finite gratification, for it left him still his lucrative prac- 
tice at the bar ; and not only had he a handsome salary 
with his new office, but Flint, his native county, was 
within his jurisdiction, and in the presence of his school- 
fellows he was to act the part of a Chief Justice. 




CHAPTER XLII. 

CONTINUATION OF THE LIFE OF LORD KENYON TILL 
HE WAS APPOINTED MASTER OF THE ROLLS. 

IT has been said that we get on in the world more by 
receiving favors than by conferring them, and Thur- 
low was only incited by the snarling criticisms upon 
the appointment of the new Chief Justice of Chester to 
push on his protdgd to higher elevation. Accordingly, 
on the dissolution of Parliament, which took place in the 
autumn of the year 1780, Thurlow negotiated Kenyon's 
return to the House of Commons for the now disfranch- 
ised borough of Hindon in the county of Wilts. There 
was a show of opposition at the election, and a petition 
was presented against the return, charging Mr. Kenyon 
with bribery. This called forth the only speech which 
he delivered, till, having long given silent votes, he had 
the extraordinary luck to be appointed Attorney Gen- 
eral. A motion having been made to give precedence 
out of its turn to the Committee to try the merits of the 
election for the city of Coventry, " Mr. Lloyd Kenyon 
said he stood in the predicament of a member petitioned 
against on the heavy charge of bribery — that his moral 
character was bleeding afresh every hour the trial of the 
petition against him was delayed— that, in obedience to 
the regulations of the House, he had submitted, on the 
principle of general convenience, to the day on which 
the Committee to try the petition was fixed to be bal- 
loted for — that he had as much right to acceleration and 
preference as another; and, if another was to be favored, 
he should consider it an indication that hostilities were 
determined against him, and a grievous injury." 

Kenyon's reputation was now very high as a lawyer. 
By his fee-books still extant, it appears that he made 
above ;^3000 a year by answering cases. His opinions, 
bemg clear, decisive, sound and practical, gave great 



J 78 1 -J LORD KEN YON. 



'3 



satisfaction, although he seldom assigned any reasons or 
cited any authorities. But he never acquired forensic 
reputation, and all that could be said for him as a coun- 
sel in court was, that he had unifoimly read his brief, 
and was prepared to battle with force, if not with ele- 
gance, all the points which could arise in the course of 
the cause. There are only two criminal trials in which 
he is stated ever to have been engaged. The first was 
the prosecution of Mr. Stratton and his associates foi 
deposing Lord Pigot, the Governor of Madras. Alonj-- 
with Erskine and other juniors, he assisted Dunning, whf 
led for the defendants ; but he only cross-examined a 
witness, without addressing the jury, and when, after a 
conviction, the judgment of the Court was prayed, he 
waived his right of speaking in mitigation of punish- 
ment.' Yet we are afterwards surprised all of a sudden 
to find him leading counsel in a very celebrated trial 
which required a display of the highest powers of elo- 
quence. However paradoxical it may appear, the dry, 
technical lawyer, who could hardly construct a sentence 
of English grammatically, was very skillfully selected on 
this occasion. 

Lord George Gordon was about to be tried for his life 
on a charge of high treason, because the mob which he 
headed while they strove tumultuously to present a 
petition to the House of Commons against Popery, had, 
afterwards, when he had left them, committed dreadful 
outrages in the metropolis, for which many of the chief 
malefactors had been very properly hanged. There was 
a strong prejudice against hipa on account of his im- 
prudent speech, which had remotely, though uninten- 
tionally, lead to such disastrous consequences, and it 
was generally expected that he would be found guilty. 
He and his friends placed their only hope upon Erskine, 
who had been lately called to the bar, and had shown 
powers as an advocate unexampled in our judicial annals. 
But who was to be the colleague of this extraordinary 
youth? The statute of William HL, to regulate trials 
lor high treason, allowed a full defense by two counsel. 
No one junior to Erskine could be trusted, and his efforts 
would have been controlled and cramped by a senior of 

' 21 Stat. Tr. 1045. 



u 



EEIGN OF GEORGE III. [lySi- 



any leputation. Kenyon was therefore fixed upon. He 
was known to be a consummate lawyer, it was believed 
he would do no harm, and he was expected to act as a 
foil to Erskine, who was to come after him, and was 
sure to make up for all his deficiencies. 

Though at first strongly opposed, from the dread that 
the jury might definitively make up their minds before 
Erskine could be heard, the hazardous plan was adopted, 
and it succeeded most admirably. 

Kenyon, having practiced at Quarter Sessions, had 
some notion of cross-examination, and he thus dealt 
rather smartly with a witness who had sworn to seeing a 
flag, with an exciting Protestant motto upon it, carried 
in the mob which the noble prisoner led on : Q. " Can 
you describe the dress of this man whom, you say, 
you saw carrying the flag?" A. "I cannot charge my 
memory ; it was a dress not worth minding — a very 
common dress." — Q. " Had he his own hair, or a wig?" 
A. "If I recollect right, he had black hair; shortish 
hair, I think." — Q. " Was there anything remarkable 
about his hair?" A. "No; I do not remember any- 
thing remarkable ; he was a coarse-looking man ; he ap- 
peared to me like a brewer's servant in his best clothes." 
— Q. " How do you know a brewer's servant in his best 
clothes from another man ?" A. " It is out of my power 
to describe him better than I do. He appeared to me 
to be such." — Q. " I ask you by what means do you dis- 
tinguish a brewer's servant from another man?" A. 
" There is something in a brewer's servant different from 
other men." — Q. " Well, then, you can tell us how you 
distinguish a brewer's servant from any other trade?" 
A. "I think a brewer's servant's breeches, clothes, and 
stockings, have something very distinguishing." — Q. 
" Tell me what in his breeches and the cut of his coat 
and stockings it was by which you distinguished him?" 
A. " I cannot swear to any particular mark." Thus, 
by a little bullying and browbeating, the witness was 
thrown into confusion ; and, although all that he swore 
about the flag was correctly true, his evidence was dis- 
credited. 

But when Mr. Kenyon came to address the jury, he 
performed so miserably that the prosecution resembled 



1781.] LORD KEN YON. 



»5 



an undefended cause, and poor Lord George afterwards 
declared that " he gave himself up for lost." To ex- 
hibit the most favorable specimen of this oration, I 
select the carefully premeditated proemium as it ap- 
pears in the State Trials, after being corrected by tha 
orator : — 

"Gentlemen of the Jury : The counsel for the prose- 
cution having stopped in this stage of the business, giv 
ing as a reason for not producing more witnesses, tha^ 
they are afraid of tiring out the patience of the Coun 
and the jury, it is the misfortune of the prisoner to mak^ 
his defense at that period of the day when the attention 
of the Court and the jury must be, in some measure, ex- 
hausted. There are other-difficulties which he also labors 
under ; for, upon this occasion, I, who am assigned, by 
the Court, to be one of his counsel, confess myself to be 
a person very little versed in the criminal courts ; I never 
yet stood as a counsel for a person who had so great a 
stake put in hazard ; and therefore, gentlemen, in ad- 
dressing you for him, I stand as a person in considerable 
agitation of mind for the consequences which may hap- 
pen through my defects. 

" When persons are accused of actions of great enor- 
mity, one is apt to look round about one to see what the 
motives were that could induce the parties so to act. 
The prisoner at the bar stands before you a member of 
one of the most considerable families in this country. 
At the time when this conduct is imputed to him, he 
was a member of the Legislature ; he stood in a situa- 
tion which he was not likely to better by throwing the 
country into convulsions. A person that stood in the 
situation he stood in, could not make his prospect better 
than in seeing the affairs of the country conducted un- 
der legal government ; and if he thought any inroads 
had been made upon those laws which the wisdom of 
our ancestors had enacted, it was his business to bring 
about the repeal of those laws, to redress those griev- 
ances, by proper legal means, and not by causing a re- 
volt in this country. This being the case, and as his 
conduct may be imputed to good or bad motives, it 
seems reasonable, and humanity will induce you, to im- 
pute it to proper rather than improper motives, the 



i6 REIGN- OF GEORGE III. L^Si- 

noble prisoner being, as I have said, a man standing in 
a situation who had everything to expect so long as law 
prevailed, but nothing to expect when anarchy was sub- 
stituted in the place of law. 

" The crime imputed to the noble prisoner is, that he, 
being a liege subject of the King, had levied war against 
the King. The crime is imputed to him under an Act 
of Parliament enacted for the wisest purpose, that crimes 
of this very enormous nature should not depend upon 
loose construction ; but that men, in their journey 
through life, might, by looking upon the statute, see 
what the plan of their duty was, might see what the 
rocks were upon which they were not to run, and might 
see, in the plain words of the statute, what they were to 
do, and what to avoid. The Attorney General has told 
you, very properly, that the crime which he meant to 
impute to him was not a crime against the person of the 
King, but that it was a constructive treason. Gentle- 
men, I have only to lament that there is such a phrase 
in the law as constructive treason. At the time when 
the law was enacted, I verily believe the Legislature had 
lit not in their contemplation that the words construc- 
tive treason would find their way into the courts at 
Westminster ; but however, so it seems the law is ; for 
■so it seems, upon some certain occasions. Judges' have 
decided." 

He afterwards handled all the witnesses seriatim in 
the order in which they were called, reading their evi- 
dence from the notes on his brief, and making trivial 
comments upon them. At last he arrived at his perora- 
tion : " I know that I speak to men of character and 
-station in the world, and of good sense, and who know 
that their duty is to do justice; and know at the same 
time that every favorable construction is to be made in 
behalf of the prisoner. That has always been the lan- 
guage of courts, and will be the language of this court 
this day." 

If the trial had here concluded, the jury, without leav- 
ing the court, would inevitably have fourfd a verdict of 
guilty; but Erskine followed and restored the fortune 
■of the day. It was impossible for him, with a grave 
face, to praise the eloquence of the discourse which had 



it78i.] LORD KENYON. 



17 



just been delivi,red ; but with the utmost courtesy and 
generosity he sought to cover the failure of his leader, 
complimenting him upon his powers of cross-examina- 
tion, and dwelling particularly upon the " breeches of 
the brewer's servant." After a most masterly exposition 
of the law of high treason, he clearly proved that, even 
giving credit to all that had been sworn on behalf of the 
Crown, the prisoner had neither imagined the King's 
death, nor levied war, within the meaning of the statute 
of Edward III. by which treasons were defined. So 
there was a glorious acquittal.' 

It should be related to Kenyon's credit that on this 
occasion he was entirely free from jealousy and envy, 
although so outshone. On the contrary, he felt nothing 
towards his junior but admiration and gratitude, which 
continued through life, notwithstanding their political 
differences — insomuch that he would hardly believe the 
stories which were afterwards told of Erskine's immoral- 
ities ; and when some things were related which could 
not be denied, he would exclaim, " Spots on the sun — 
only spots on the sun !" 

Mr. Kenyon's subsequent forensic displays were con- 
fined to arguing in the Court of Chancery such matters 
as the construction of a will or exceptions to the Mas- 
ter's report. But we must now attend to him as a pol- 
itician. In the House of Commons he steadily voted 
with Lord North's Government till the critical division 
which put an end to it. On this occasion he absented 
himself on the plea of indisposition.^ 

Thurlow continuing, to the astonishment of all man- 
kind, to hold the Great Seal under Lord Rockingham 
. and the Whigs, now contrived to have his old "devil" 
Kenyon placed in the situation of Attorney General. 
This appointment caused considerable discontent, for 
the law officers of the Crown had long been men of lib- 
eral acquirements and of great weight in the House of 
Commons. Undervaluing his own qualifications, Thur- 
low observed that the chief object in such an appoint- 
ment was to have a sound lawyer, who could give good 
advice to the Government, and that Kenyon was allowed 
on all hands to be more familiarly acquainted with every 

' 21 St. Tr. 4S5-652. 22 Pari. Hist. 1208. 

IV. — 2. 



i8 REIGN OF GEORGE III. [1782. 

branch of the law than any of his competitors, — that the 
silence which he had hitherto observed in the House of 
Commons argued discretion, — and that his zealous offi- 
cial services henceforth would be found of high valu«;. 
The objection that this favorite had been strenuous for 
carrying on the war with America and against concilia- 
tion could not be decently urged, as the patron was in 
the same predicament. So Lord North's Attorney Gen- 
eral Wallace was turned out, and Kenyon, who had 
copied his principles and his conduct, succeeded him — ■ 
to the peculiar chagrin of Whig barristers and consider- 
ably to the detriment of the new Whig Government. 
Dunning, become Lord Ashburton, Chancellor of the 
Duchy of Lancaster, and a member of Lord Rocking- 
ham's Cabinet, was suspected, in spite of repeated 
denials, of favoring the elevation of a man of notoriously 
anti-Whiggish principles, in consideration of the valuable 
assistance formerly rendered to himself in answering 
cases and noting briefs. 

The new Attorney General was a little puzzled by 
some of the questions on interhational law which arose 
from the " armed neutrality" of the Northern powers, 
entered into with a view to encroach on our belligerent 
maritime rights ; but by industry he got up pretty well 
the learning about blockades, contraband of war, and 
free bottoms making free goods, and on all subjects of 
municipal law he advised the Government more prompt 
ly, more decisively, and more correctly than any law 
officer of the Crown had done for many years. 

He first opened his mouth in the House of Commons, 
after being appointed Attorney General, in an altercation 
with Mansfield, the late Solicitor General, who, in the 
debate on Lord Shelburne's measure for arming the 
people, had represented the volunteers in Ireland as hav- 
ing constituted themselves the government of the coun- 
try, and although several times called to order, had 
insisted on going on in the same strain. At last, "Mr. 
Attorney General Kenyon expressed his surprise that 
his learned friend should have put the House under the 
necessity of calling him to order three different times, 
and as his speech had a dangerous tendency if persevered 
in, he must be called to order again." Mansfield de- 



1782.] LORD KEN YON. ig 

dared himself hurt by the Attorney General's speech, 
which he said could not be calculated for any good pur- 
pose, and no part of his past life would justify the 
imputation that he would intentionally make any ob- 
servation which could be injurious to the country. Ken- 
yon : " I did not speak in the most measured terms, be- 
cause I saw my learned friend on the brink of a precipice, 
and I was eager to save him from falling." Mansfield 
declared himself quite satisfied with this explanation, 
and their friendship continued without abatement.' 

Mr. Attorney General, till ejected by the Coalition 
Ministry, spoke only on one subject — the recovering of 
balances due to the Exchequer from those who had held 
the office of Paymaster-General to the Forces ; and here 
he displayed zeal which was supposed to be a little 
heated by his desire to please the Chancellor, by his 
preference to the Shelburne section of the Cabinet, and 
by his antipathy to the family of Fox. He astonished 
the House by his observations on certain resolutions 
moved by Lord John Cavendish, the Chancellor of the 
Exchequer, which had for their object prospectively to 
put the Paymaster of the Forces and other public ac- 
countants on fixed salaries, and to prevent them from 
retaining any public money in their hands to be em- 
ployed for their own profit. Mr. Attorney General 
Kenyon said — 

" He would not oppose the resolutions, but he would 
have it understood that he did not preclude himself in 
the smallest degree from a full right and libertj'^to discuss 
in a court of justice the question, ' whether the public 
might not call upon the great servants of the public to 
account for the great emoluments they had made by 
means of the public money?' He spoke not from any 
ill will to any man alive, but solely from a sense of duty 
in an office which he had been unexpectedly, as he was 
undeservedly, called to fill. He did not know how long 
he might remain ir it ; but if he should be dismissed 
from it, he should return to much domestic happiness, 
which he had enjoyed before he was called into public 
life ; but while he remained in it he was determined to 
do his duty." 

' 23 Pari. Hist. 9. 



20 REIGN OF GEORGE III. [1782- 

Mr. Secretary Fvx : " I cannot join with my learned 
friend, his Majesty's Attorney General, in the obser- 
vations he has thrown out. I contend, as I have often 
done before, that when a balance of public money lies in 
the hands of a public accountant, all the public have a 
right to expect from him is, that whenever the money 
shall be called for, it shall be forthcoming. To future 
regulations on the subject I offer no objection. I wish 
that my learned friend would leave some room for 
prescription, and draw some line beyond which his 
inquiry shall not go, otherwise it will be in the power of 
the King's Attorney General to keep in constant alarm 
and the worst of slavery all those who have ever filled 
any public office and their descendants. It may happen 
that a public accountant may have acquired a great 
fortune by a fair and honorable use of public money, 
and his descendants may, by their folly and imprudence, 
have completely dissipated and destroyed it : are these 
descendants to be called upon to account for the profits 
made by their ancestors ? Let the line be drawn, and I 
shall be satisfied." 

Nevertheless, in the course of a few days, Mr. Attorney 
General, disclaiming all personal motives, moved certain 
resolutions, which would have made Mr. Fox, who had 
not a shilling in the world, although nov/ Secretary of 
State and aspiring to the Premiership, liable for interest 
on all the balances of public money which had ever been 
in his father's hands — on the alleged ground that as the 
principal sums belonged to the public, the public was 
entitled to all the profit made of them — observing that, 
■although he now acted without communication or con- 
cert with any members of the Government, he had con- 
sulted lawyers of high eminence in Westminster Hall, 
who unanimously agreed with him that the rule by which 
trustees were bound in a court of equity applied to public 
accountants. 

Mr. Fox: " It might have been as well if my honor- 
able and learned friend had consulted some member of 
the Government before, as organ of the Government, he 
moved these resolutions. He says that lawyers whom 
he has consulted are of opinion that the public have a 
right to claim all the profits of their own money in the 



1783.] LORD KENYON. is 

hands of a public accountant. This may be law, but it 
does not appear to be common sense, and therefore I 
suspect that it is not law, for the law of England and 
common sense are seldom at variance. The comparison 
between a public accountant and a trustee will not hold 
good. A guardian, for instance, having his ward's money 
in his hands, may and ought to put it in a state of 
lucration. If he vests it in the public funds, and they 
rapidly fall, the loss falls on the minor, and not on the 
guardian. But what would be said, under similar cir- 
cumstances, to a public accountant of the Treasury? 
' We have nothing to do with your losses, you must bear 
them yourself — it was not by our direction that you put 
out the public money to interest.' To call for interest 
from a public accountant would be to justify him in 
placing the public money out at interest, and to make 
the public liable for the losses which might ensue." 

Mr. Wallace, the ex-Attorney General, said that what- 
ever others in Westminster Hall might think, he felt no 
difficulty in declaring that the public had no such right, 
and he believed that he should not be found singular 
among the gentlemen of the long robe. It was a clear 
maxim in lav/ that whatever party received the profit, 
the same party ought to bear such losses as the property 
sustained ; but all were agreed that the public had 
nothing to do with any loss arising from the use of 
public money, and that a public accountant being liable 
for the whole of his balances, the last shilling of his prop- 
erty, and his liberty too, must answer for any deficiency. 

The Attorney General took fire at the idea of imput- 
ing to him any thoughts of personaHty or malevolence 
in his conduct on that day ; he hoped the gentleman 
did not look into his own heart to find out the motives 
by which he was actuated that day. 

Some of the Attorney General's resolutions were with- 
drawn, and the others were negatived.' 

On the death of Lord Rockingham and the resigna- 
tion of the Foxite Whigs, Kenyon continued in office 
under Lord Shelburne, but took no pari: in the debates 
on the treaty of peace, or on any othei subject during 
this administration. The " Coalition" having ,oVjrme<l 

' 23 Pari. Hist. 115-134. 



22 LORD KEN YON. [1783- 

the royal closet, he was replaced by his rival Mr. Wal- 
lace, and he enlisted himself under Mr. Pitt, without 
adopting any of the liberal principles which illustrated 
the early career of this most distinguished statesman. 

The ex-Attorney General led the opposition to the 
first measure of the new government — a bill to facilitate 
the collection of the malt duties — and he acted as teller 
on the division, but found himself in a minority of 
forty-seven to twelve.' 

He returned to the attack upon Mr. Fox by asking a 
question of the government, " whether- there was any 
intention of reviving a bill which he had filed in the 
Exchequer against Mr. Powell, the executor of the late 
Lord Holland, and which had abated by the death of 
that gentleman?" The Solicitor General said, "he 
hoped the bill would never be revived to the full extent 
of that which had abated — which was for the recovery 
of all the profits which had ever been made from the 
use of public money by the late Lord Holland — a meas- 
ure which appeared to him so unjust, vexatious, and 
oppressive — so contrary to the received practice of all 
paymasters for a century, and which would lay under 
such terrible apprehensions the descendants of all former 
paymasters, without any limitation as to time, that he 
would sooner resign his office than concur in such an 
abuse of the supposed prerogative of the Crown." Mr. 
Fox complained that " of all the former paymasters, his 
father was the only one whom the late Attorney Gen- 
eral had singled out for the purpose of exacting from 
his executors what would reduce the whole family to 
beggary. This was a prosecution which, considering the 
situation in which he stood when it was commenced, 
looked very like a persecution." Mr. Pitt, much ashamed 
of what had been attempted, said, " he did not himself 
think that such a demand should be made by the public; 
but if the demand was legal, though oppressive, his 
learned friend was justified in enforcing the law, leaving 
it to the legislature to give relief." Mr. Burke : " Then 
Empson and Dudley, who were properly hanged, might 
have been justified or. precisely the same ground." " 

When a bill for reforming the abuses of the Ex- 
' 23 I'arl. Hist. 1026. « ib. 1060. 



1-783.] REIGN OF GEORGE HI. 23 

chequer was passing through the House of Commons, 
the ex-Attorney General showed his gratitude to Lord 
Thurlow by supporting a clause by which the tellership 
of that noble lord should be exempted from its opera- 
tion, on the ground that although there had been no 
bargain on the subject, when he accepted the great seal, 
which would have been very dishonorable, there had 
been an expectation and an understanding which ought 
to be respected. Lord North said, " this was what the 
French called ' unir les plaisirs du vice au m^rite de la 
vertii,' " and the clause was rejected.' 

In the debate respecting amending the receipt tax, 
Mr. Sheridan made the House very merry by referring 
to an opinion of the ex-Attorney General on the sub- 
ject, which had been published in all the newspapers, 
along with another signed OLIVER QuiD. 

Mr. Kenyan : " I did write the opinion which the hon- 
orable gentleman hae alluded to in the regular course of 
my professional practice, not for the purpose of obstruct- 
ing the collection of the receipt tax, or annoying the 
government. I believe it is sound, and I abide by it. 
By putting the opinion of a professional lawyer and that 
of Oliver Quid on the same footing, the honorable 
gentleman has lowered himself and not me. With re- 
gard to its appearance in the newspapers, I am proud to 
say that I have no connection with them. I never wrote 
paragraphs for them, nor paid news writers for the rub- 
bish which they contain. I am not solicitous for news- 
paper fame, nor are any of the prints of the metropo- 
lis retained in my service, although they all may be in 
the service of others."" 

This speech is said to have been " very tartly deliv- 
ered," and it certainly shows great boldness, considering 
the withering retaliation to which he exposed himself. 

When the announcement was made that the Coalition 
Ministry, equally odious to the King and the nation, 
had been dismissed, Mr. Kenyon naturally expressed his 
exultation, and a question having been put whether Mr. 
Pitt, the new Premier, would dissolve Parliament, he 
said, very properly, "I am not in the secrets of those 
who are just gone out, or of those who are coming ^•v, 

' 23 Pari. Hist. TO9&-91. ' lb. 1222. 



■24 



LORD KEN YON. [1784. 



and therefore I do not know what measures are likely to 
be adopted. But this I know, that the power of dis- 
solving Parliament is in the Crown alone, and that this 
House has no constitutional right to prolong its exist- 
ence by its own authority.'" As soon as Mr. Pitt had 
filled up the higher offices of the Government, Mr. 
Kenyon again succeeded Mr. Wallace as Attorney Gen- 
eral. 

In this capacity he only once more came forward, and 
that was in the discharge of " the duty he had sworn to 
perform" — compelling the payment of Paymasters' bal- 
ances. The object of his attack now was Mr. Rigby, 
who had long been Paymaster under Lord North, and 
had rendered himself highly obnoxious by siding with 
the Coalition. Without any notice to him whatever, a 
motion was abruptly made "That the Right Hon. Rich- 
ard Rigby, late Paymaster-General of the Forces, do de- 
liver to the House an account of the balance of all 
public money remaining in his hands on the 13th day of 
November last." Rigby complained bitterly that " the 
proceeding was contrary to all practice. The want of 
civility did not surprise him, as such a thing he had no 
right to expect from the learned gentleman. He ap- 
pealed to the House whether even common decency had 
been observed in bringing forward in such a manner a 
question so very personal." 

The Attorney General excused the want of notice by 
his having come down to the House so late, and again 
dwelt upon the sacred duty cast upon him when he took 
the oath of office, as Attorney General, to watch over 
the rights of the Crown : — 

Mr. Rigby : " I will leave the House to judge of th 
learned gentleman's candor and his motives. I might 
ask if any individual ever experienced such treatment 
from an Attorney General. The obligation of his oath 
is his excuse. But this prodigious obligation only op- 
erates against his political opponents ; and a very differ- 
ent interpretation was put upon the Attorney General's 
oath of office by his predecessors, Lord Camden, Loid 
Thurlow, Lord Loughborough, and Mr. Wallace, who 
really were honorable men."' 

' 24 Pari Hist. 234. s 24 Pari. Hist 672. 



e 



1784.J LORD KEN YON. 25 

Kenyon had all this time retained the office of Chief 
Justice of Chester, and twice a year traveled the North 
Welsh circuit as a Judge. 

At the Great Sessions, held at Wrexham, for the 
county of Denbigh, in September, 1783, the celebrated 
rase stood for trial before him of The King v. The Rev. 
William Shipley, Dean of St. Asaph, which was an indict- 
ment for publishing the " Dialogue between a Scholar 
and a Farmer," written by Sir William Jones. Erskine 
came special as counsel for the defendant, and, ai ac- 
quittal being anticipated, a motion was made to put off 
the trial on pretense that some one unconnected with 
the defendant had published a pamphlet, and distributed 
it in Wales, inculcating the doctrine that the Jury, iu 
cases of libel, are judges of the law as well as of the fact, 
and may return a verdict 01 not guilty, although the act 
Qf publication was proved, if they should be of opinion 
that the alleged libel contains nothing libelous. Erskine 
very indignantly resisted the application, but was over- 
ruled, by the Chief Justice. The Dean of St. Asaph 
made an affidavit, showing that the supposed libel, which 
was a very harmless explanation of the principles of rep- 
resentative government, had been written by Sir Wil- 
liam Jones, lately appointed an Indian Judge, and that 
the prosecution was maliciously instituted by an in- 
dividual after the Government, by the advice of the 
Attorney and Solicitor Generals (Mr. Wallace' arid Mr. 
Lee), had refused to prosecute, and that he himself was 
not in any degree privy to the circulation of the pamph- 
let respecting the rights of juries. This affidavit being 
read and commented upon by counsel, the defendant 
himself interposed, and earnestly implored that he 
might be allowed then to take his trial : — 

Kenyon, C. J.: "■ Msdus in rebus'' — there must be an 
end of things." 

Dean of St. Asaph : " Think, my Lord, of the anxiety 
I have suffered and the expense I am put to. Let me 

' The Chief Justice professed great respect for Mr. Wallace, with whom 
he had several times exchanged the office of Attorney General, but was 
highly offended by his opinion being stated that the " Dialogue" was not a 
libel. 

' This classical quotation his Lordship was in the habit of introducing 
when he thought it was full time to put an end to any discussion. 



26 REIGN OF GEORGE III. [1784. 

stand or fall by the decision of this jury: let me, if in- 
nocent, once more stand up as an honest injured man ; 
if guilty, let me be dragged to a dungeon." 

Kenyan, C. J. : " When the jury had given their ver- 
dict, if they find you guilty, the court will then consider 
what judgment to pass." 

Dean of St. Asaph: " My Lord, in God's name let me 
have a verdict one way or the other. Don't let me be 
kept longer in suspense." 

Kenyan, C. J. : " I desire that after I have given the 
judgment of the Court, that judgment may not be talked 
about ; I have given it upon my oath, and I am answer- 
able to my country for it. I have been before reminded 
that these things are not passing in a corner, but in 
the open face of the world. If I have done amiss, let 
the wrath and indignation of Parliament be brought out 
against me : let me be impeached. I am ready to meet 
the storm whenever it comes, having at least one pro- 
tection — the consciousness that I am right. In protec- 
tion of the dignity of the Court, I do the best thing I 
can do for the public ; for if my conduct here is extra- 
judicially arraigned, the administration of justice is ar- 
raigned and affronted, and that no man living shall do 
with impunity." 

So the trial was postponed, — and when the case was 
entered again at the Great Sessions in April, 1784, 
Erskine a second time attending as special counse-l for 
che defendant, it was removed by certiarari, and it came 
on before Judge BuUer at the Sherewsbury Assizes in 
August of the same year, when the ever-memorable strug- 
gle took place between Erskine and Mr. Justice Buller.' 
' 21 St. Tr. 847. 




CHAPTER XLIII. 

CONTINUATION OF THE LIFE OF LORD KENYON TILL 

HE WAS APPOINTED CHIEF JUSTICE 

OF THE king's BENCH. 

IN the spring of 1784 died Sir Thomas Sewell, who 
had been many years Master of the Rolls, and Mr. 
Kenyon claimed the vacant office, which was con- 
ceded to him. He rather wished to have withdrawn 
from Parliament altogether, feeling that he was unfit for 
it ; but, luckily for him, the Secretary for the Treasury 
insisted upon his finding himself a seat, that he might 
swell the ministerial majority expected in the new House 
of Commons. As yet Mr. Pitt had no high opinion of 
him, and had reluctantly agreed to his being restored to 
his. office of Attorney General, and to his promotion to 
be Master of the Rolls. But he was endeared to the 
Premier by his services connected with the Westminster 
election. 

Kenyon fulfilled his engagement with the Govern- 
ment by purchasing his return for the borough of Tre- 
gony, and he could not have been blamed if, thinking 
little more of politics, he had simply attended to vote 
when he received the treasury circular ; but being com- 
pelled to disburse a large sum for his seat, he declared 
(in American phrase) that "he was resolved to go the 
whole hog." He therefore became a most zealous 
partisan, and strove to make himself conspicuous as a 
supporter of the government. His influence was now 
great among his countrymen in Wales, and was able to 
procure votes for the ministerial candidate in several 
counties and boroughs within the limits of his jurisdic- 
tion as Chief Justice of Chester. These services, how- 
ever, were little noticed, compared with those which 
he rendered in the election for the city of Westminster. 
The grand object was that Mr. Fox might appear to be 



^8 REIGN OF GEORGE III. [1784 

rejected by his former constituents', and that the dis- 
grace should be heaped upon him of being turned out 
by a man so obscure and ridiculous as Sir Cecil Wray. 
His Honor, the new Master of the Rolls, now occupied 
a house in Lincoln's Inn Fields, beyond the limits of the 
city and liberties of Westminster ; but his stables, be- 
hind the house, were in the parish of St. Clement Danes, 
within the " Liberties," and for these he was rated and 
paid scot and lot. But, unfortunately, he could not_ as 
yet be said to be an inhabitant of the city or liberties. 
To get over this difficulty, he had a bed fitted up in the 
hay-loft over his stables ; there he slept several nights, 
and then he went to the poll, and gave a plumper for 
Cecil Wray. 

Such a proceeding might be justified or excused, but 
I am sorry to be obliged to condemn, in unqualified 
terms, the advice which he gave respecting the " Scru- 
tiny." This proceeding brought great and deserved 
obloquy upon the Prime Minister, whose character was 
yet so fair, and Kenyon's support of it was reprobated 
even by one of the most zealous and able lawyers on the 
ministerial side. 

After the election had lasted forty days, Mr. Fox had 
a considerable majority over Sir Cecil Wray ; but, at 
the return of the writ, the High Bailiff, instead of re- 
turning him with Lord Hood, who was at the head of 
the poll, corruptly granted a scrutiny, and stated, in 
answer to the mandate requiring him to return two 
citizens to serve for the City of Westminster, that " he 
should proceed with the scrutiny as expeditiously as 
possible." According to the rate, at which it was ad- 
vancing, the calculation was that it could hardly finish 
before the end of the Parliament, and that it would in- 
volve Mr. Fox in an expense of ;^2o,ooo. Several motions 
were made in the House of Commons that the High 
Bailiff should be ordered to make an immediate return. 
In opposing these the Master of the Rolls took the 
lead, and he contended " that the scrutiny was perfectly 
legal ; that it might be continued after the return of the 
writ ; that the High Bailiff could not properly make a 
return till he had satisfied his conscience which of the 
two candidates had the majority of good votes; that he 



1784.] LORD KENYON. 29 

ought to have the requisite time for this purpose, and 
that to force him to make an immediate return would be 
contrary to the maxim of justice, never to be forgotten 
— audi alteram partemy His Honor Hkewise mixed up 
his juridical argument with bitter invectives against the 
" Coalition," citing several passages from Mr. Fox's 
speeches during the American War, in which he had 
asserted that Lord North ought to be impeached and 
punished. 

Mr. John Scott (afterwards Lord Eldon), although a 
warm admirer and generally a steady supporter of Mr. 
Pitt, took a totally different law of the subject, and 
contended that both by common law and statute law 
the election must be finally closed before the return of 
the writ, so that the subsequent scrutiny was unlawful. 
Said he : — 

" A very unnecessary tenderness is shown for the 
conscience of the High Bailiff. There will be no torture 
administered to it by compelling him to make a return 
before he has finished his scrutiny, for his oath only 
binds him to act according to the best of his judgment, 
and to return the candidate that has the majority of ad- 
mitted votes. I confess I do not like that conscience in 
returning officers, under color of which they may prevent 
the meeting of parliament for ever, or, at least, present 
the nation with the rump of a parliament on the day 
when the representatives of the whole nation ought to 
assemble." 

Mr. Fox, in characterizing his opponents, when he 
came to the Master of the Rolls, said : — 

"A third person there is whom I might in reason 
challenge upon this occasion — a person of a solemn de- 
meanor, who, with great diligence and exertion in a very 
respectable and learned profession, has raised himself to 
considerable eminence — a person who fills one of the 
first seats of justice in this kingdom, and who has long 
discharged the functions of a judge in an inferior sphere.' 
This person has made a great parade of the impartiality 
with which he should discharge his judicial conscience as 
a member of Parliament in my cause. Yet this very 
person, insensible to the rank he maintains, or should 

' Chief Justice of Chester. 



30 REIGN OF GEORGE III. [1784. 

maintain, in this country, abandoning the gravity of his 
character as a member of the senate, and losing sight of 
the sanctity of his station both in this House and out of 
it, in the very act of passing sentence, is whirled about 
in the vortex of politics, and descends to minute and 
mean allusions to former party squabbles. -He comes 
here stored with the intrigues of past times, and instead 
of uttering the venerable language of a great magistrate, 
he attempts to entertain the House by quoting or by 
misquoting words supposed to have been spoken by me 
in the heat of former debates, and in the violence of 
contending factions. Not only does he repeat what he 
supposes I said when my noble friend and I were opposed 
to each other, but he goes still farther back, and to 
prove that I should now be prevented from taking my 
seat for Westminster, reminds the House that when I 
first sat here as representative for Midhurst, I had not 
reached the full age of twenty-one years. iVIight I not, 
then, fairly protest against such a man, and men like 
him, sitting in judgment npon me? " 

In reference to Mr. Scott's speech, Mr. Fox said : — 
" One learned gentleman, a political opponent, has 
shown that he has both honor and intelligence. He has 
entered into the whole of ilie case with a soundness of 
argument and a depth and closeness of reasoning that 
scarcely been equaled in the discussion of any juridical 
question within these walls." ' 

Lord Eldon, when in extreme old age, observed : — 
" Fox never said an uncivil thing to me during the 
whole time I sat in the House of Commons, and I'll tell 
you to what I attribute that. When the legality of the 
conduct of the High Bailiff of Westminster was before 
the House, all the lawyers on the ministerial side de- 
fended the right to grant the scrutiny. I thought their 
law bad, and I told them so. I asked Kenyon how he 
could answer this — that every writ and commission must 
be returned on the day on which it is made returnable? 
He could not answer it. Fox afterwards came to me 
privately and said something very civil and obliging." 

The Master of the Rolls was rewarded for his self- 
sacrifice by a Baronetcy, but he was made the subject of 

' 24 Pad. Hist. S08-940 • 25 Pari. Hist. 1-146. 



'784.] LORD KEN YON. 



3' 



many cutting jests. The " Rolliad " coming out soon 
after, the work was dedicated, " To Sir Lloyd Kenyon, 
Bart., Master of the Rolls," and in the title page was 
exhibited, as the supposed crest of the family of Rolle, 
" a half-length of the Master of the Rolls, like a lion, 
demi-rampant, with a roll of parchment, instead of a 
pheon's head, between his paws " — thus celebrated : — 

" Behold th' engraver's mimic labors trace 
The sober image of that sapient face : 
See him in each peculiar charm exact, 
Below dilate it, and above contract ; 
For Nature thus inverting her design. 
From vulgar ovals has distinguished thine ; 
See him each nicer character supply — 
The pert no-meaning puckering round the eye ; 
The mouth in plaits precise, demurely closed ; 
Each ordered feature and each line composed ; 
Where Wisdom sits a-squat, in starch disguise. 
Like Dullness couch'd, to catch us by surprise. 
And now he spreads around thy pomp of wig, 
In owl-like pride of legal honors big ; 
That wig which once of curl on curl profuse. 
In well-kept buckle stiff and smugly spruce, 
Decked the plain pleader ; then in nobler taste 
With well-frizz'd bush the Attorney General graced. 
And widely waving now with ampler flow, 
Still with thy titles and thy fame shall grow. 
Behold, Sir Lloyd ; and while with fond delight 
The dear resemblance feasts thy partial sight. 
Smile if thou canst, and, smiling on this book, 
Cast the glad omen of one favoring look." 

"You, Sir Lloyd," said the dedication, "have ever 
been reputed the immediate author of the scrutiny. 
Your opinion is said to have been privately consulted 
on the framing of the return ; and your public defense 
of the High Bailiff's proceeding notoriously furnished 
Mr. Rolle, and the other friends of the Minister, with 
all the little argument which they advanced against the 
objected exigency of the writ. You taught them to 
reverence that holy thing the conscience of a returning 
officer, above all law, precedent, analogy, public ex- 
pediency, and the popular right of representation, to 
which our fatliers erroneously paid religious respect." 
Then, after a long banter in prose upon his Honor for 
having slept in his stables and voted as the representa- 
tive of his horses, this poetic effusion follows : — 



32 REIGN OF GEORGE HI. \t-iH- 

" How shall the neighing kind thy deeds requite, _ 
Great Yahoo champion of the Houyhnhnm s right? 
In grateful memory may thy dock-tail pair 
Unharmed convey thee with sure-footed care ; 
O ! may they, gently pacing o'er the stones. 
With no rude shock annoy thy batter'd bones, 
Crush thy judicial cauliflow'r, and down 
Shower the mix'd lard and powder o'er thy gown ; 
Or in unseemly wrinkles crush that band, 
Fair work of fairer LADY Kenyon's hand. 
No ! — may the pious brutes with measured swing 
Assist the friendly motion of the spring. 
While golden dreams, of perquisites and fees 
Employ thee, slumbering o'er thine own decrees ! 
But when the statesman in St. Stephen's walls 
Thy country claims thee, and the Treasury calls 
To pour thy splendid bile in bitter tide 
On hardened sinners who with Fox divide, 
Then may they, rattling on in jumbling trot. 
With rage and jolting make thee doubly hot, 
Fire thy Welsh blood, inflamed with zeal and leeks, 
And kindle the red terrors of thy cheeks. 
Till all thy gathered wrath in furious fit 
On Rigby bursts — unless he votes with Pitt." 

Mr. Fox being at last seated for Westminster, and 
having recovered heavy damages in an action against the 
High Bailiff for having granted and so long continued the 
scrutiny, at the end of the Rolliad there is a supposed 
letter to this corrupt functionary from Sir Lloyd Ken- 
yon, apologizing for not paying these damages on ac- 
count of his poverty, and particularly alluding to a story 
generally circulated, that he went to Court in a second- 
hand suit of clothes, bought by him from Lord Stor- 
mont's valet de cha^nbre. The whole composition is very 
pungent, but I can only extract a few sentences from 
it: — 

"The long and short of the matter is, that I am 
wretched poor — wretchedly so I do assure you in every 
sense and signification of the word. I have long borne 
the profitless incumbrance of nominal and ideal wealth. 
My income has been cruelly estimated at seven, or as 
some will have it, eight thousand pounds per annum. I 
shall save myself the mortification of denying that I am 
rich, and refer you to the constant habits and whole 
tenor of my life. The proof to my friends is easy. My 
"tailor's bill for the last fifteen years is a record of the 
most indisputable authority. Malicious sculs may direct 



1784] LORD KEN YON. 



33 



you, perhaps to Lord Stormont's valet de chambre, and 
vouch the anecdote that on the day when I kissed hands 
for ray appointment to the office of Attorney General, 
I appeared in a laced waistcoat, that once belonged 
to his master. I bought the waistcoat, but despise the 
insinuation ; nor is this the only instance in which I am 
obliged to diminish my wants, and apportion them to 

my very limited means. Lady K will be my witness 

that until my last appointment I was an utter stranger 
to the luxury of a pocket-handkerchief.' 

"You are possessed of the circumstances which render 
any immediate assistance on my part wholly out of the 
question. But better times may soon arrive, and I will 
not fail you then. The present Chief Justice of the 
King's Bench cannot long retain his situation, and I will 
now reveal to you a great secret in the last arrangement 
of judicial offices. Know, then, that Sir -Elijah Impey 
is the man fixed upon to preside in the chief seat of 
criminal and civil jurisprudence. I am to succeed him 
in Bengal, and then we may set the malice of juries at 
defiance. If they had given Fox as many diamonds by 
their verdict as they have pounds, rest assured that I 
am not a person likely to fail you after I shall have been 
there a little while, either through want of faith or want 
of means. Set your mind, therefore, at ease. As to the 
money, why if Pitt is determined to have nothing to do 
with it, and if nobody will pay it, I think the most ad- 
visable thing in your circumstances will be to pay it 
yourself. The contents of this letter will prove that I 
mean to reimburse you when I am able. For the present, 

nobody knows better than yourself, not even Lady K , 

how ill matters stand with me, and that I find it utterly 
impossible to obey the dictates of my feelings. 
"Your very affectionate friend 

"And humble servant, 

"L. K. 

" Lincoln's Inn Fields, June ■2.0, 1786. " 
Sir Lloyd's efforts connected with the Westminster 

' I have heard Jekyll assert that " Lord Kenyon never used a pocke'- 
handkerchief in his life till he found one in the pocket of this very 
waistcoat, which pocket-handkerchief he ought to have returned, as it 
was not included in the bargain for the waistcoat." 
IV.— 3 



34 KEIGN OF GEORGE III. [1784— 

Scrutiny brought him into such trouble and discredit, 
that he wisely resolved wholly to renounce politics and 
to stick to his judicial duties. For these he felt he was 
well qualified, whereas he declared that " legislation was 
a task to which he by no means thought himself equal." 
Accordingly, although he retained his seat in the House 
of Commons several years longer, he generally contented 
himself with a silent vote. However,* he strenuously op- 
posed a Bill for taking away the jurisdiction of the Ec- 
clesiastical Courts in cases of defamation, which had 
been productive of much oppression to individuals and 
scandal to the church, and when asked to regulate, if he 
would not abolish, these proceedings, he said " he would 
not presume to blurt out his crude ideas of legislation 
lest they should fail of success." ' 

The last time of his addressing the House of Com- 
mons was in support of Sir Elijah Impey, but he rather 
damaged the defense by his intemperance, and gave Mr. 
Burke and Mr. Francis a triumph over him.'' 

Let us now attend him to the Rolls, where he ap- 
peared to much greater advantage. Being unable to 
read a single page of the Pandects, and being wholly 
unacquainted with the Roman civil law, even through 
the medium of translations and commentaries, he can- 
not be said to have been a great equity judge, but he 
was most familiarly acquainted with the practice and 
the doctrines of the Court of Chancery ; he took very 
great care with every case that came before him, and he 
dispatched business with celerity and precision. He 
never seems to have written his judgments, and they 
cannot be praised for method, but they were very clear, 
and geneially very sound. 

The Reporters are Brown' and Cox,* and from them I 
extract a few of the most favorable specimens of his 
manner as Master of the Rolls. The question arose 
whether there ought to be a decree for the dissolution 
of a partnership where one of the partners was so far 
disordered in his mind as to be incapable of conducting 
the partnership business according to the terms of the 

' 25 Pari. Hist. 13S4, 1403 ; 26 Pari. Hist. 1004-5-8. « lb. 1423-4. 
' Brown's Rep. vols. i. and ii. 
* Cox's Caseb, vols. i. antl ii. 



rySS.] LORn KEMYON. 35 

articles of copartnership, although he could not be con- 
sidered non compos mentis. As soon as the hearing of 
the cause was concluded, his Honor, without carrying 
the papers home with him or taking time to consider, 
spoke as follows : — 

" This point is a new one, and if I conceived any in- 
dustry of mine would throw any light upon the subject, 
I would take time to consider of my opinion, but as I 
do not know of any authority to guide me, and as I have 
made up my mind as to what I ought to do, I shall give 
my sentiments now. I think it may be laid down that 
where partners are to contribute skill and industry as 
well as capital, if one partner becomes unable to con- 
tribute that skill, a Court of Equity ought to interfere 
for both their sakes ; for both have stakes in the partner- 
ship, and are interested in having it carried on properly, 
and the Court ought to see that the property of the 
party unable to take care of himself should be taken care 
of for him. It appears that few people care to leave the 
management of their property to other persons ; and as 
a lunatic has no power of managing his own property, 
so a Court of Equity will not deliver it to persons to 
whom the party himself has not committed it. If there- 
fore this gentleman continues in the same state of de- 
rangement in whichi he has been, I should have no 
difficulty in saying that the partnership ought to be dis- 
solved, though there may be no precedent for the pur- 
pose. If, as is alleged, he has clearly recovered his 
senses and there is no danger of a relapse, it would be 
too much to dissolve the partnership. Every body 
knows that it is very frequent for persons once mad not 
to recover. I must therefore direct a new kind of in- 
quiry, 'Whether Bennet is now in such a state of mind 
as to be able to conduct the business according to the 
articles of copartnership ?' for if he has merely a ray of 
intellect, I ought not to reingraft him in his partnership, 
and that in mercy to both, for the property of both is 
concerned, and he who cannot dispose of his property by 
law, must be restrained.'" 

Persons entitled to an estate under a will upon the 
contingency of James Baron dying without lawful issue, 

' Sayer v. Bennet, I Cox, 107. 



36 REIGN OF GEORGE III. [1784— 

applied for a writ de ventre inspiciendo, under these cir- 
cumstances. He had married his servant maid, who in 
three weeks after the marriage was dehvered of a dead 
child, and he dying soon after, she alleged herself to be 
again pregnant, whereas there was great reason to be- 
lieve that she -intended to palm a suppositious child 
upon the world for the purpose of defeating the remain- 
der man. Objection was made that the writ could only 
be granted to persons claiming by descent. 

Master of the Rolls : " At the time when the writ was 
first framed, which was coeval with the common law, the 
nature of the claim now made could not possibly exist ; 
there was no disposition by will. Therefore land could 
only be claimed by descent. But the language of the 
writ may be varied according to the exigency of the case. 
Now what is the exigency of this case ? — that the per- 
sons entitled to the property should not be defeated by 
a suppositious child. Disinherison or exhceredatio is not 
confined strictly to an heir. When there is eadein ratio 
there ought to be eadem lex. The question is, whether 
there be in this case circumstances sufficient to warrant 
me in granting the order? The situation and conduct 
of the wife may well alarm the parties interested. She 
was brought to bed in less than three weeks after the 
marriage, and doubts arising when soon after upon her 
husband's death she declared herself pregnant, she did 
not take proper measures to remove these doubts — which 
she should have done, if it were only for the sake of the 
child. I therefore clearly think that the writ should 
issue. 

In Halfhide v. Penning, Sir Lloyd Kenyon pro- 
nounced a judgment which has often been overruled, 
bu'. which I humbly apprehend rests on just principles. 
To a bill for an account between partners, the defend- 
ant pleaded that by the articles of partnership it was 
stipulated that any disputes arising between them re- 
specting matters of account should be referred to arbitra- 
tion. 

Master of the Rolls : " There can be no doubt but that 
parties entering into an agreement that all disputes shall 
be referred to arbitration, are bound by such agreement. 
' Ex parte Bellet, i Cox, 897. 



17S8,] LORD KEN YON. 



37 



The Legislature has countenanced arbitrations by 
enacting facilities to enforce the performance of awards. 
Where a cause is referred by rule of the Court of King's 
Bench, with a clause that no Bill in Equity shall be 
filed, that Court, considering this clause legal, grants an 
attachment for the violation of it. Such references are 
very advantageous to the parties, as arbitrators are more 
competent to the settling of complicated accounts than 
the officers of courts of law or equity. I ought to be 
convinced that arbitrators cannot or will not proceed be- 
fore I entertain jurisdiction of the matter. I am satisfied 
that in the first instance recourse ought to be to those 
judges pointed out by the articles. If they cannot 
determine the controversy, they will remit it to this 
Court.'" 

Although we shall in vain look in his judgments at 
the Rolls for such masterly expositions of the principles 
of equity as delight us in those of his successor, Sir 
William Grant, and there were several of his decrees re- 
versed, he despatched a great deal of business in a very 
creditable manner. Lord Eldon afterwards said to his 
son, " I am mistaken if, after I am gone, the Chancery 
Records do not prove that if I decided more than any 
of my predecessors ih the same period of time, Sir Lloyd 
Kenyon beat us all." This compliment to Sir Lloyd 
Kenyon is well deserved, although the condition on 
which it is awarded cannot be affirmed, as Lord Eldon 
himself, in finally disposing of causes, was one of the 
slowest as well as one of the surest Judges who ever sat 
upon the bench. 

The distinguished Welshman was now to exhibit his 
judicial powers on a wider stage. Lord Mansfield having 
presided thirty years as Chief Justice of the Court of 
King's Bench, was disabled by age and infirmity from 

' 2 Brown, 336. The maxim that Courts of Law and Equity are not to 
be ousted of their jurisdiction by the agreement of the parties arose at a 
time when the profits of judges depended almost entirely upon the number 
of suits tried before them. This mode of remuneration accounts for the de- 
cisions whereby the statutes made to discourage frivolous actions by depriv- 
ing the plaintiffs of costs were long rendered abortive. — December, 1849. 

I am glad to think that by judgments of the Court of King's Bench, and 
of the House of Lords, in which I took a part, the right of parties to provide 
for the settlement of their disputes by arbitration is now fully established.— 
January, 1857. 



38 REIGN OF LrEORGE III. [1788, 

longer doing the duties of his office, and he anxiously 
desired that Mr. Justice Buller should be appointed his 
successor. He intimated his willingness to resign if this 
arrangement should be acquiesced in. But it is said 
that the Prime Minister, when at the bar and going the 
Western Circuit, although Buller, the Judge of Assize, 
was very civil to him, had been much scandalized by 
observing his Lordship's demeanor in trying a great 
Quo Warranto case, which involved the right to return 
members of Parliament for a Cornish borough, contested 
by his family ; and it is certainly known that Mr. Pitt 
not only had a good opinion of Sir Lloyd Kenyon's 
moral qualities, but felt deep gratitude for the sacrifices 
that his Honor had made in qualifying himself to vote 
for Sir Cecil Wray by sleeping in his own stables, and in 
zealously defending the " Scrutiny." Lord Mansfield 
was therefore told that the Master of the Rolls would 
be recommended to the King as Chief Justice. The 
notion was particularly disagreeable to the aged Peer. 
He not only sincerely believed that his favorite was 
much better qualified, but he had been told that the 
rival candidate had sneered at some recent decisions 
of the King's Bench which tended to bring about a 
fusion of law and equity, and that he was accustomed, 
like the Sergeants celebrated by Pope, to 

" Shake his head at Murray as a wit." 

For two years, while shut up in his villa at Caen Wood, 
Lord Mansfield retained his office of Chief Justice, in- 
the hopes that Buller's growing popularity, while de 
facto presiding as the first common law Judge in West- 
minster Hall, might bear down all opposition, or that 
there might be a change of ministry — when his superior 
merit might be acknowledged and rewarded. 

At last, hints were thrown out that this retention of 
the office was an abuse of the statute which made judges 
irremovable, and that the power of removing, reserved 
to the Crown on an address to the two Houses of Parlia- 
ment, might be put in force for incapacity as well as for 
criminality. 

Accordingly, on the 4th day of June, 1788, Lord Mans- 
field signed his resignation, and on the 9th of the same 



1788.] 



LORD KEN YON. 



39 



month, being the last day of Trinity Term, 1788, Sir 
Lloyd Kenyon was sworn in as his successor. On the 
same day the new Chief Justice, by letters patent under 
the Great Seal, was created Baron Kenyon of Greding- 
ton, in the county of Flint. He sat at nisi prius im- 
mediately after, but he was not formally installed till 
the first day of the following Michaelmas Term. 




CHAPTER XLIV. 

LORD KENYON AS CHIEF JUSTICE OF THE KING'S BENCH. 

ALTHOUGH Lord Kenyon afterwards acquired the 
full respect both of the legal profession and of 
the public, his promotion was in the first instance 
much disrelished. The gibes of the Rolliad circulated 
in society; he had offended several barristers by his 
hasty and uncourteous manner, and there was an illiberal- 
apprehension that, because he had practiced while at the 
bar in a court of equity, he must be unfit to preside in a 
court of law. Buller, on the contrary, was not only " the 
Prince of Special Pleaders," and really had done the 
business of the King's Bench exceedingly well for two 
years, but he had been in the frequent habit of inviting 
all grades of the profession to the genial board, where 
they found flowing cups as well as flowing courtesy. 

As I am henceforth to speak of the new Chief Justice 
almost exclusively in his judicial capacity, it may be 
convenient that I should at once proceed to the notice 
which I am called upon to take of him as a politician. 
He was introduced into the House of Peers in his robes 
between Lord Sydney and Lord Walsingham on the 
26th of June, 1788.' Of course he was a steady sup- 

' "June 26, 1788. 

" Sir Lloyd Kenyon, Baronet, being, by Letters Patent bearing date the 
gth June, I7'88, in the twenty-seventh' year of his present Majesty, cre- 
ated Baron Kenyon of Gredington, in the county of Flint, was (in his- 
robes') introduced between the Lord Sidney and the Lord Walsingham 
(also in their robes), the Gentleman Usher of the Black Rod and Garter 
King at Arms preceding. His Lordship on his knee presented his Patent 
to the Lord Chancellor at the Woolsack, who delivered it to the Clerk ; 
and the same was read at the table. His Writ of Summons was also read 
as follows (videlicet) ■ 

" ' George the Third, by the Grace of God, of Great Britain, France, 
and Ireland, King, Defender of the Faith, and so forth : To Our righS 
justy and well-beloved Counsellor Lloyd Kenyon, of Gredington, in qui 

'Sic. 



1789-] LORD KENYON. 41 

porter of the Government, although he very properly 
abstained from again making himself prominent as a 
political partisan. 

In a debate which soon after arose upon the insanity 
of George III., Lord Porchester, to enforce the neces- 
sity of immediately restoring the exercise of the royal 
authority by addressing the Prince of Wales to act as 
Regent, stated — ■ 

" That on Monday last two men had been butchered 
by a' public execution, because the door of mercy was 
barred against them, and that these unfortunate convicts 
had been deprived of all opportunity of applying either 
for a pardon or for a temporary reprieve, although it had 
been laid down by Judge Blackstone that if a convict, 
after receiving sentence of death, loses his senses, exe- 
cution is stayed, because, if he had retained his senses, 
he might have urged some plea to induce the Crown to 
remit or to mitigate his punishment." 

Lord Kenyan : " It would ill become me to listen with 
silent indifference to a charge of so serious a nature, and 
urged with such vehemence against a judge. The judge 
who tried these criminals is now the party accused. If 
on the trial of a person convicted of a capital crime, cir- 
cumstances come out which warrant the judge in sup- 
posing that the verdict is wrong, it is his duty to respite 
the convict. If anything favorable appeared on the trial 
of the two persons executed on Monday, the judge who 

County of Flint, Chevalier, greeting : Whereas Our Parliament for arduous 
and urgent Affairs concerning Us, the State and Defense of Our Kingdom 
of Great Britain, and the Church, is now met at Our City of Westmin- 
ster ; We, strictly enjoining, command you under the Faith and Allegiance 
by which you are bound to Us, that considering the Difficulty of the said 
Affairs and Dangers impending, all Excuses being laid aside, you be per- 
sonally present at Our aforesaid Parliament with Us, and with the Prelates, 
Nobles, and Peers of our said Kingdom, to treat of the aforesaid Affairs, 
and to give your Advice, and this you may in no wise omit as you tender 
Us and Our Honour, and the Safety and Defense of the said Kingdom 
and Church, and the Despatch of the said Affairs. 

" ' Witness Ourself at Westminster, the Ninth Day of June, in the 
Twenty-eighth Year of Our Reign. Yorke.' 

" Then his Lordship took the Oaths, and made and subscribed the 
Declaration ; and also took and subscribed the Oath of Abjuration, pur- 
suant to '.he Statutes, and was afterwards placed on the Lower end of 
the Baron's Bench. 

" Garter King at Arms delivered in at the Table his Lordship's ped- 
igree, pursuant to the standing Order." — 3& Journal, 249 



42 



REIGN OF GEORGE III. [1791- 



tried them ought to have respited them ; and if he neg- 
lected his duty, they have not been butchered but mur- 
dered by him, which is a much higher offense. The 
judge guilty of such an act of criminal neglect, instead 
of being allowed to go' in state to Westminster Hall 
next morning, ought to have been seized in his fur 
robes, dragged from the seat of justice, and hurried to 
that dungeon in which the two unfortunate men had lin- 
Ijered the last hours of their existence. I therefore call 
upon the noble lord to make good his charge, to name 
the judge, and to bring the real culprit to condign pun- 
ishment." 

Lord Porchester : " I bring no imputation on any judge. 
The judge who tried these two unfortunate prisoners is 
my own near relation, and a most honorable, enlight- 
ened, and humane magistrate. But because the evi- 
dence against them on their trial might appear quite 
sufficient, does it follow that they might not have good 
reason to apply for pardon or reprieve, and ought they 
to have been hurried out of the world, while, contrary 
to our laws and our constitution, the power of extending 
mercy to them was suspended?" 

Lord Kenyon returned no answer; but I apprehend 
he might have said, that in truth the ministers of the 
Crown continued to exercise the powers of their several 
offices ; that a pardon or respite, if fit to be granted, 
would have been directed by the Secretary of State as 
effectually as if the King had been in the full possession 
of his faculties.' 

By this maiden speech our Chief Justice did not make 
a favorable impression, and he was so little satisfied with 
it himself, that he never again opened his mouth in the 
House of Lords till the question arose whether the im- 
peachment of Mr. Hastings was abated by the dissolu- 
tion of Parliament. Although so familiarly acquainted 
with every branch of our municipal law, he knew very 
little of the law of Parliament, and it would have been 
better if on this occasion he had remained silent. He 
apologized for his defective information on the subject, 
as his professional engagements had prevented him from 
reading the Report of the Committee appointed to 
' 27 Pari. Hist. 1065. 



t792-] LORD KENYON. 



43 



search for precedents. He then strongly took the side 
oi abatement. " If dry legal reasoning," said he, " and a 
strict attention to forms of practice (on which substantial 
justice depends) be unpleasant to your lordships, you 
had better not call on lawyers for their opinions, but 
either send them out of the House, or not allow them 
to babble here." In commenting on the opinion of 
Lord Hale, he fell into the mistake of asserting, " as an 
undoubted fact, that this great judge would never sit on 
a criminal case during the Commonwealth, because he 
doubted the authority of Cromwell," whereas Hale un- 
doubtedly took the oath to the Republican Government, 
and, till he had a difference with the Protector, tried 
criminal as well as civil cases without any scruple.' 
Good sense prevailed, and the quibble of abatement was 
crushed by a majority of 60 to 18.' 

Lord Kenyon strongly opposed the Bill to prevent 
vexatious suits for small tithes, saying that " he could 
not consider it any oppression that persons should be 
imprisoned for sums as low as one shilling, for if any 
were so obstinate as to refuse the payment of legal dues, 
the law ought to be enforced. He, therefore, would not 
concur in pulling down a fabric which had stood so 
many years, and which was the chief support of the in- 
ferior clergy."' 

Our Chief Justice then came forward to oppose Mr. 
Fox's Libel Bill, which declared that juries had a right 
to determine whether the writing charged to be libelous 
is of an innocent or criminal character. " He expressed 
his dislike of the loose and vague manner in which the 
Bill was worded. He pronounced its principle to be a 
direct contradiction to the practice of a long series ot 
years, and that it was totally inadequate to the purpose 
it was meant to effect. It tended to alter the established 
law of the realm, and was a dangerous innovation upon 
the constitution. The only doubt was whether the 
truth should be taken as part of the defense, and if this 
Bill were to pass, a clause to determine that point would 
be absolutely necessary. He thought the Judges the 
only men who could give the necessary information, and 

' Ante, vol. ii. p. 187. ' 29 Pari. Hist., 535. 

a 2S Pari. Hist. 21S. 



44 



REIGN OF GEORGE III. [1792-- 



he should move that the following questions be put to. 
them : ' I. On the trial of an indictment for libel, is the 
criminality or innocence of the paper set forth as the 
libel matter of fact or matter of law? 2. Is the truth or 
falsehood of the paper material, or to be left to the jury, 
on a trial?' " / 

The two questions were referred to the Judges, who 
unanimously answered that " it was for the Court alone, 
and not for the jury, to determine whether the paper 
chirged to be a libel was criminal or innocent," and 
"that proof of the truth could not be admitted; nay, 
that the doctrine for excluding it was so firmly settled 
ai^d so essentially necessary for the maintenance of the 
King's peace and the good order of society, that it can- 
not be drawn into debate.'" 

On the motion for the second reading of the Bill, Lord 
( amden and Lord Loughborough still advised the 
Kouse to pass it; but it would appear that Lord Ken- 
yon would have remained silent had not Lord Stanhope 
made some observations which he supposed reflected 
upon him. This eccentric Peer not only found fault 
with the direction given to the jury at the famous trial 
of the King v. Stockdale, but, to illustrate the injustice 
which might be done by referring the question of "libel 
or no libel " to the Judges instead of the jury, put the 
ca=c of there being an indictment for an alleged libel, in 
denouncing the prosecution as "a great bore." 

"If referred to the jury," said his Lordship, "they 
would immediately say: 'This is no imputation on 
moral character. We who attend in courts of justice 
know well that a person may be a great bore who is very 
desirous of discharging his duty, and is only very narrow- 
minded, dull, and tedious. Therefore we find a verdict 
of not guilty.' But if treated as a mere question of law,^ 
the Judges would say : ' We read nothing in our books 
of a bore so spelt. Lord Coke says, the spelling of 
words signifieth naught. We must consider that the 
libel denounces the prosecutor as a great boar. Now 
Manwood de Foresta lays it down that ' a boar is a beast 
of chase of an evil and ungovernable nature, the which 

' 29 Pari. HUt. 1361. 



1792-] LORD KEN YON. 



45 



it is lawful to follow and to kill.' Now, whereas the 
libel avers that the prosecutor is ' a great boar,' we must 
take this zw mitiori sensu, and suppose the charge to be, 
not that the prosecutor actually is a great boar, but only 
that he has the qualities of a great boar. But these 
render him unfit for society as much as if he were in- 
fected with certain disorders, to impute which is libelous 
and actionable. A 'great boar' is -as much as to say a 
' wild boar,' which may lawfully be slain by those whom 
it attacks, even in the purlieus of a royal forest. There- 
fore we hold the defendant to be guilty, and we sentence 
him to be hanged.' " 

Lord Kenyan : "After the unprovoked attack that has 
been made upon me, I must appear the meanest of man- 
kind in your Lordships' estimation if I do not endeavor 
to defend myself. Every man cannot command the 
great abilities and the great eloquence which have been 
exhibited here this day ; but there is one thing in every 
man's power, viz., veracity. The noble Earl, instead of 
seeking to obtain true information, chooses rather to at- 
tack me on false facts. In Stockdale's case, Mr. Erskine 
expressed himself quite satisfied with my direction, and 
I entirely approved of the verdict. The noble Earl has 
tried to cover with ridicule all that is held sacred. I 
honor trial by jury as much as any man ; but let the jury 
be confined to their proper province, the trial of facts. 
I conjure your Lordships, therefore, to. let the law re- 
main as it is, with all its guards and fences about it. A 
man sitting on the bench suffers many an uneasy mo- 
ment, and- is obliged to consult his conscience to enable 
him to do his duty. Great are the advantages from the 
question of libel or no libel remaining exclusively with 
the Judges. If a man were indicted for publishing a 
paper which inculcated virtue and loyalty, instead oi 
vice and sedition, I would not direct the jury to find a 
verdict against such a defendant. Cases have occurred 
where the jury have found the defendant guilty, and the 
Judges have stepped in and rescued him. As for the 
noble Earl to dabble in law, as he has attempted, it is as 
preposterous as if I were to quote Sir Isaac Newton's 
Principia, or to go into a dissertation on Euclid's Prob- 



46 REIGN OF GEORGE III. [1797. 

lems.' The noble Earl's speech deserves no other 
notice, for instead of being proper for your Lordships to 
hear, it was rather calculated to inflame the lowest dregs 
of the people and to put them out of humor with the 
public administration of justice."' 

However, from the noble support given to the bill by- 
Mr. Pitt's government, it passed, and it has operated 
most beneficially. Thanks to the liberality of a succeed- 
ing age another bill has passed, admitting evidence of ' 
the truth of the charge ; and this too has greatly pro- 
moted " the King's peace and the good order of society," 
which the judges said the mere mention of such a meas- 
ure would fatally subvert.' 

For the five following years, perhaps the most inter- 
esting in our parliamentary annals. Lord Kenyon ap- 
pears never to have opened his lips in the House of 
Peers, and I find him only once more addressing this 
assembly, although he very regularly voted or gave his 
proxy in favor of the Government. 

Lord Moira had broiight in a bill to abolish imprison- 
ment for debt. Among other petitions in favor of the 
bill, there was one detailing the abuses supposed to 
prevail in the King's Bench prison, and asserting that 
from the sale of beer and spirits to the debtors, large 
profits were derived by the Lord Chief Justice. The 
noble Lord who introduced the bill declared that he be- 
lieved that these charges were false and calumnious. 

Lord Kenyon, rising with evident agitation, spoke as 
follows : 

" My Lords, when I came down to the House this day 
I did not know whether I should not, be dragged to your 
Lordships' bar as a criminal. I beg your Lordships' in- 
dulgence, therefore, while I express my injured feelings. 
It is most true that the vile charge against me alluded 
to by the noble Lord has excited my grief and indigna- 
tion. _ Who would have supposed that there was a single 
man in the kingdom base enough to believe me guilty 
of such misconduct, and barefaced enough to put such 

' Sic. He seems to have thought it great presumption for a lawyjr to 
pretend to have crossed the Pons Asinorum. 
' 2g Pari. Hist. 1294, 143 1. 
' Lord Campbell's I-ibel Bill, 6 & 7 Victoria, c. 96. 



t788.J LORD KENYOy. 



47 



an accusation upon paper? Although I am not 
now upon my oath, I speak under a sense of the 
duty I owe both to God and man, and I take 
this opportunity of solemnly declaring, as I hope 
for salvation at the day of judgment from that all-just 
and benevolent Being to whom I am to answer for my 
conduct in this life, that every syllable of the accusation 
is utterly false. I have never received any profit or 
emolument from the abuses which have been mentioned, 
yet a slanderer asserts that they were for my profit and 
emolument sanctioned by me in my judicial capacity, 
and I am represented as avariciously sharing the plunder 
with jailers, turnkeys, and tipstaves. Under my present 
feelings I most earnestly beseech and implore your 
Lordships to appoint a committee to inquire into my 
conduct, and I pledge myself to adduce evidence before 
that committee to prove what I now solemnly aver. 
But for the public I am clearly of opinion that imprison- 
ment for debt should continue. I insist that the law of 
arrest, as it now prevails, has conduced in an essential 
degree to the increase of commerce and the extension of 
trade. The most serious consequences would follow if 
the security which it offers to the creditor were weakened. 
It is impossible altogether to prevent abuses, but when 
they come to my knowledge they shall never be coun- 
tenanced, nor the authors of them suffered to go un- 
punished." ' 

. The Bill was thrown out by a majority of 37 to 21, 
and did not pass till above forty years afterwards, when 
I had the honor to re-introduce it. 

Henceforth Lord Kenyon, when attacked, instead of 
defending himself in debate in the House of Lords, 
••changed the venue" to the Court of King's Bench, 
where he could both indulge in a little self-laudation, and 
retaliate upon his accusers without any danger of a 
reply. 

He never brought forward any Bill for the amend- 
ment of the law, nor did he even attend so the judicial 
business of the House of Lords. This cannot be cele- 
brated as a very glorious parliamentary career. Indeed 
if a Chief Justice of the King's Bench is to do so little 

' 33 Pari. Hist. iSl. 



48 REIGN OF GEORGE HI. [17SS— 

for the public as a peer, there seems no reason why he 
should be ennobled. His official rank is abundantly 
sufficient to insure respect to a man of character and 
ability, and a peerage is conferred upon him, not that 
he may frank letters or walk in a procession, but that he 
may assist in the supreme Court of Appeal for the 
empire, and, as a legislator, he may strive to improve 
our laws and institutions. 

I am much pleased that we are now to see Lord 
Kenyon presiding on his tribunal in Westminster Hall. 
Here he appeared to infinitely greater advantage. Al- 
though not free from considerable defects, in spite of 
them he turned out to be a very eminent common law 
Judge. His thorough acquaintance with his craft, his 
intuitive quickness in seeing all the bearings of the most 
complicated case, and his faculty of at once availing 
himself of all his legal resources, gave him a decided ad- 
vantage over competitors who were elegant scholars, 
and were embellished by scientific acquirements. He 
had a most earnest desire to do what was right ; his 
ambition was to dispose satisfactorily of the business of 
his Court, and to this object "he devoted his undivided 
energies. 

However, the misfortune of his defective education 
now became more conspicuous, for he had not acquired 
enough general knowledge to make him ashamed or 
sensible of his ignorance, and without the slightest 
misgiving he blurted out observations which exposed 
him to ridicule. He was particularly fond of quoting 
a few scraps of Latin which he had picked up at school 
or in the attorney's office, without being aware of their 
literal meaning. In addition to the " modus in rebus," ' 
he would say, that in advancing to a right conclusion, 
he viaui, A^I&xxmxiQA. stare super antiquas vias, and when he 
declared that there was palpable fraud in a case, he would 
add " apparently latet anguis inherbd." At last George 
HL, one day at a levee, said to him, " My Lord, by all 
I can hear it would be well if you would stick to your 
good law and leave off your bad Latin ;" but this advice, 
notwithstanding his extraordinary loyalty, he could not 
be induced to follow. 

' Ante, p. 33, his observations in Dean of St, Asaph's case. 



i8o2.] LORD KENYON. 



49 



A more serious obstacle to the dignified discharge of 
his judicial duties arose from his hasty and ungovernable 
temper. He is said to have surprised his friends, for a 
few weeks after taking his seat as Chief Justice, with a 
show of courtesy, but he soon gave up the unequal con- 
test, and his brother judges, the bar, and the solicitors, 
were by turns the victims of his choler. We have the 
following account of his demeanor in court from a 
barrister who practiced under him all the time he was 
Chief Justice : — 

" The supercilious reception which he gave to the 
opinions of the other judges was not that merely of 
neglect, it bordered on contempt. He predominated 
over them with high ascendency. They very rarely 
differed from him ; if they did, their opinions were re- 
ceived with a coldness which stooped not to reply, or, if 
noticed, were accompanied with angry observations. He 
was irritated by contradiction, and impatient even of an 
expression of doubt of the infallible rectitude of what 
he had delivered as his judgment. In differing with his 
predecessors he used no soft or measured language. 
Having occasion to contravene a dictum of Chief Jus- 
tice Holt, ' he wondered that so great a judge should 
have descended to petty quibbles to overturn law and 
justice ;' and when a saying of Lord Mansfield was cited 
respecting the right to recover a total loss on a valued 
policy, with a small interest actually on board, he de- 
clared that ' this was very loose talking, and should not 
be ratified by him.' When a new trial was moved for 
against a ruling of his own, on the ground of misdirec- 
tion, he would scarce give time to his colleagues to de- 
liberate together, but at once burst out : ' If the rest of 
the court entertain any doubt, the case may be farther 
considered, but I am bound to give the same opinion I 
formerly gave : not because I gave that opinion before, 
but because I am convinced by the reasoning that led to 
it.' Whenever his brother judges ventured to differ 
from and overrule his decisions (there were scarcely a 
dozen cases in the course of fourteen years which called 
for this exhibition of fortitude), his manner evinced as 
much testiness as if he had received a personal affront. 
If a word escaped from a counsel not quite in accord- 

IV,— 4 



50 



REIGN OF GEORGE III. [1788— 



ance with his sentiments, his temper blazed into a flame 
which could scarcely be subdued by humility. On these 
occasions he gave loose to an unchecked effusion of in- 
temperate expression, and his language was not chas- 
tened by the strict rule of good breeding. Mr. Law, 
when leader of the Northern Circuit, having moved 
rather pertinaciously for a new trial. Lord Kenyon thus 
concluded his judgment : ' You will take nothing by 
your motion but the satisfaction of having aired your 
brief once more.' Nor while thus offensive to those 
more advanced in the profession, could he claim, as a 
set off, the merit of being gracious and encouraging to 
the junior portion of the bar. An irregular application, 
though it proceeded from inexperience only, was re- 
ceived without the indulgence which was due to it ; if 
made by the more experienced, it was received with 
contumely. He would say, 'You know you cannot suc- 
ceed. You do not expect to succeed.' " 

A graver fault was his indulging in partialities for, and 
antipathies against particular barristers. Erskine was 
his pet ; he delighted to decide in favor of this popular 
advocate, and when obliged to overrule him, he would 
give his head a good-natured shake, and say, with a 
smile, " It won't do, Mr. Erskine, it won't do." Law, 
on the contrary, was so snubbed by him that, at last, he 
openly complained of his constant hostility in the well- 
known quotation : — 

" Non me tua fervida terrent 
Dicta, ferox [pointing to Erskine] ; Dl me terrent — 
[Pointing to the bench] — et Jupiter kostis." 

Such was the general opinion respecting the infirmity 
of his temper that the following anecdote was circulated 
and believed, although the epigrammatic point, and the 
rudeness which it imputes to George IIL, were equally 
at variance with the character of that royal personage : 
" Lord Kenyon being at the levee, soon after an extra- 
ordinary explosion of ill humor in the Court of King's 
Bench, his Majesty said to him, ' My Lord Chief Jus- 
tice, I hear that you have lost your temper, and, from 
my great regard for you, I am very glad to hear it, for I 
hope you will find a better one.' " 



iSoj.J LORD KENYON. 51 

All these failings, nevertheless, were much more than 
counterbalanced by his professional learning, his energy, 
and his probity, so that he was not only admired by 
common jurymen, who were on a level with him as to 
general acquirements, and with whose feelings and preju- 
dices he sympathized, but his brother judges, in all the 
courts at Westminster, owned his superiority, the bar 
succumbed to his despotic sway, and the public, while 
they laughed at his peculiarities, confided in him and 
honored him. I can hardly point out any principle on 
which he openly professed to differ from his predecessor, 
except the rigid enforcement of the rule that, in the 
possessory action of ejectment, the legal estate shall 
always prevail. Lord Mansfield had not only very prop- 
erly decided that the tenant may not dispute the title 
of the lessor under whom he occupies, and that satisfied 
terms may be presumed to be surrendered, but in some 
cases he had gone farther, and held, where there was no 
estoppel, that unsatisfied outstanding terms should not 
bar an ejectment if the party bringing the ejectment 
would agree to recover, and to hold the premises subject 
to the uses of these terms.' But Lord Kenyon over- 
ruled Buller, who followed the doctrine of Lord Mans- 
field, and, supported by Ashurst and Grose, held that a 
court of law was wholly incompetent to consider trusts, 
and, there being no estoppel, that an outstanding term, 
if there was no sufficient ground for presuming it to 
be surrendered, was universally a complete bar to the 
ejectment.' 

He likewise induced the Court to hold, against a de- 
cision of Lord Mansfield, that an action cannot be main- 
tained in a court of law for a pecuniary legacy, although 
the executors have assets in their hands from which it 
might be paid, as a Court of Equity has the means of 
determining such questions much more satisfactorily, 
and of doing justice to all who may be interested in the 
fund.' With still more doubtful policy he overturned 
some decisions of Lord Mansfield respecting actions by 
and against married women separated from their hus- 

• Doe dem. Bristow v. Pegge, I T. R. 758 n. 

• Doe dem. Hodsden v. Staple. 
Deeks v. Strutt, 5 T. R. 690. 



52 REIGN OF GEORGE III. [1789- 

bands by a divorce a mensa et thoro, or under articles of 
separation with property settled upon them, or where 
they had declared themselves to be, and had acted as 
single women, the rule being now laid down that a mar- 
ried woman cannot bring an action or be impleaded as a 
feme sole while the relation of marriage subsists — al- 
though the common law furnished the analogy of a mar- 
ried woman acquiring a separate character by the exile 
of her husband, or by his entering into religion.' 

I am not aware of any other decision to justify the 
oft-repeated assertion that " Lord Kenyon restored the 
simplicity and rigor of the common law."" 

I shall now proceed to mention some of the most re- 
markable cases which came before him as Chief Justice 
of the King's Bench. 

Soon after his elevation, he tried the famous ex-officio 
information of Rex v. Stockdale, the prosecution having 
been ordered by the House of Commons for a supposed 
libel upon that assembly, in the shape of a defense of 
Mr. Hastings. The Chief Justice's direction to the jury 
on this occasion was wholly unexceptionable ; but con- 
sidering that the Bill had not yet passed declaring the 
right of juries to judge of the character and tendency of 
papers charged as libelous, as well as the act of publica- 
tion, I am quite at a loss to reconcile his direction with 
the opinion he peremptorily gave in the House of Lords, 
and often repeated afterwards, that " libel or no libel " 
was a pure question of law, to be decided by the Court. 
He had strongly sided with the defenders of Hastings, 
and very much approved of the sentiments which the 
prosecuted pamphlet expressed — thinking that the 
House of Commons had been guilty of oppression and 
vexation in the manner in which they had instituted and 
conducted the impeachment. Perhaps his wish for an 
acquittal might have unconsciously biassed his judg- 
ment But, however this may be, he distinctly told the 

' Marshall v. Rutton, 8 T. R. 545. One of the most remarkable in- 
stances of an action by a married woman is that by Lady Bellknappe (wife 
of the Lord Chief Justice), when her husband had been transported to Ire- 
land. " Lives of Chief Justices," vol. i. p. 116. 

' The observation would have been more just, that " he successfully re- 
sisted Lord Mansfield's attempts to bring about a fusion of Law and 
Equity." 



1789-] LORD KEN YON. 



S3 



jury that they were to consider whether the sense which 
the Attorney General had affixed to the passages set 
out in the information was fairly affixed to them. Ac- 
cording to the old doctrine, the jury were to consider 
whether the innuendoes in the information were made 

out, such as that " H of C " meant House of 

Commons, or that " the K " meant our Sovereign 

Lord the King, and nothing further. But here the Lord 
Chief Justice Kenyon said : — 

"You must make up your minds that this was meant 
as an aspersion upon the House of Commons, and I ad- 
mit that you are not bound to confine your inquiry to 
these detached passages which the Attorney General has 
selected as offensive. But let me, on the other side, 
warn you that though there may be much good writing, 
good argument, morality and humanity in many parts 
of it, yet, if there are offensive passages, the good part 
will not sanctify the bad part. You have a right to look 
at the whole book, and, if you find the passages, se- 
lected by the Attorney General do not bear the sense 
imputed to them, the defendant has a right to be ac- 
quitted, and God forbid he should be convicted. You 
will always be guided by this — that where the tendency 
is ambiguous and doubtful, the inclination of your judg- 
ment should be on the side of innocence. It is not for 
me to comment further upon the pamphlet : my duty is 
fulfilled when I point out to you what the questions are 
proposed for your determination ; the result is yours, 
and yours only." 

The jury, after two hours deliberation, found a verdict 
of NOT GUILTY ; but, according to the doctrine laid down 
unanimously by the Judges in the House of Lords, the 
defendant ought certainly to have been convicted; for 
the act of publication was admitted, and the technical 
innuendoes were proved ; so that the acquittal proceeded 
upon the ground that the intention of the pamphlet was 
fairly to discuss the merits of the impeachment, not to 
asperse the House of Commons, or, in other words, that 
the pamphlet was not a libel, the jury, with the consent 
of the Judge, having exercised the power afterwards con- 
ferred on juries by Mr. Fox's Libel Bill.' 
' 22 St. Tr. 237-308. 



54 REIGN OF GEORGE III. [1793. 

When the French Revolution broke out, and the 
reign of terror began in England, I am sorry to say that 
Lord Kenyon strongly abetted the system of repressing 
Jacobin principles by ill-advised prosecutions and cruel 
punishments, rather than by amending our laws and by 
the mild and dignified administration of justice. The 
first case which came before him, arising out of the 
revolutionary movement, was an ex officio information 
by the Attorney General against Dufleur and Lloyd, two 
prisoners confined for debt in the Fleet Prison, charging 
them with a conspiracy to escape and to subvert the Go- 
vernment, because they had affixed upon the gate of the 
prison a, paper containing the following ADVERTISE- 
MENT : — 

" This House to Let ; peaceable possession will be given 
on or before the ist of January, 1793, being the com- 
mencement of the first year of liberty in Great Britain." 

This pasquinade against imprisonment for debt, com- 
posed for the amusement of the debtors, the Chief 
Justice gravely treated as a seditious libel ; and the de- 
fendants, being found guilty, were sentenced to stand in 
the pillory.' 

The trial and punishment of John Frost, the attorney, 
were still more discreditable. While in a coffee house, 
under the excitement of wine, he was overheard to use 
some indiscreet expressions respecting the French Re- 
public and monarchical form of government. Notwith- 
standing an admirable defense by Erskine, he was found 
guilty of sedition, and the senior Puisne Judge having 
pronounced sentence "that he should be imprisoned six 
months in Newgate, that he should stand on the pillory 
at Charing Cross, and find sureties for his good behavior 
for five years," Lord Kenyon, C. J., added with great 
eagerness, " and also be struck off the rolls of attorneys 
of this Court," whereby he was to be rendered infamous, 
and to be irretrievably ruined, so that death really would 
have been a milder sentence." 

The next political case which came before him was 

remarkable as being the first prosecution for libel under 

Mr. Fox's Libel Bill, and to the Chief Justice's shame 

it must be recorded that he misconstrued and perverted 

' 22St, Tr :,i7-358. ' lb. 471-522. 



I793.] LORD KENYON. 55 

this noble law — establishing a precedent which was fol- 
lowed for near half a century, to the manifest grievance 
of the accused. 

An information was filed by the Attorney General 
against the proprietor and printer of the " Morning 
Chronicle " for publishing in that journal certain resolu- 
tions of a public meeting held at Derby, in favor of 
parliamentary reform, and against abuses in the govern- 
ment, based upon this principle : — " That all true govern- 
ment is instituted for the general good, is legalized by 
the general will, and all its actions are or ought to be 
directed for the general happiness and prosperity of all 
honest citizens." 

Lord Kenyan {to the jury): " A great deal has been 
said by the counsel for the defendants about parliament- 
ary reform. Before I would pull down the fabric or 
presume to disturb one stone in the structure I would 
consider what those benefits are which it seeks. I should 
be a little afraid that when the water was let out, no- 
body could tell me how to stop it ; if the lion was once 
let into the house, who would be found to shut the door? 
The merits or demerits of the late law respecting the 
trial of libel I shall not enter into. It is enough for me 
that it is the law of the land, which by my oath I am 
bound to give effect to, and it commands me to state to 
juries what my opinion is respecting this or any other 
paper brought into judgment before them. When these 
resolutions appeared in the newspaper of the defendants 
the times were most gloomy — the country was torn to 
its center by emissaries from France. It was a notorious 
fact — every man knows it — I could neither open my 
eyes nor my ears without seeing or hearing them. 
Weighing thus all the circumstances — that the paper 
was published when those emissaries were spreading 
their horrid doctrines ; and believing there was a great 
gloominess in the country — and I must shut my eyes 
and ears if I did not believe that there was ; — believing 
also that there were emissaries from France wishing to 
spread the maxims prevalent in that country in this, — 
believing that the minds of the people in this country 
were agitated by these political topics of which the mass 
of the population never can form a true judgment, and 



S6 REIGN OF GEORGE III. [1793. 

reading this paper, which appears to be calculated to 
put the people in a state of discontent with everything 
done in this country, — / am bound by my oath to answer 
that I think this paper was published with a wicked, ma- 
licious intent to vilify the Government and to m.ake the 
people discontented with the constitution under which they 
live. This is the matter charged in the information ; — 
that it was done with a view to vilify the constitution, 
the laws, and the government of this country, and to in- 
fuse into the minds of his Majesty's subjects a belief 
that they were oppressed, and on this ground I consider 
it as a gross and seditious libel. It is not sufficient that 
there should be in this paper detached good morals in 
part of it, unless they give an explanation of the rest. 
There may be morality and virtue in this paper ; and 
yet, apparently latet unguis in herbd. There may be 
much that is good in it, and yet there may be much to 
censure. I have told you my opinion. Gentlemen, the 
constitution has entrusted it to you, and it is your duty 
to have only one point in view. Without fear, favor, or 
affection, without regard either to the prosecutor or de- 
fendants, look at the question before you, and on that 
decide on the guilt or innocence of the defendants." 

The Act of Parliament' only required the Judge to 
deliver his opinion in point of law to the jury on the 
trial of libel " in like manner as in other criminal cases," 
and therefore he was only bound to tell the jury that if 
from the contents of the paper and the circumstances 
under which it was published it was meant to vilify the 
government and constitution and to infuse discontent 
into the minds of the people, it was in point of law a 
libel, without taking upon himself as a matter of fact to 
determine that such was the intent.' 

The jury, after two hours' deliberation, found a ver- 
dict of Guilty of publishing, but with no ma- 
licious INTENT ; and being told that this verdict could 
not be received— after sitting up all night, they next 
morning returned a general verdict of NOT GuiLTY." 

' 32 Geo. III. c. 60, s. 2. 

» I myself heard a succeeding Judge say, " The Act requires me to declare 
to you my opmion m point of law, and I am clearly of opinion that this is a 
most wicked, seditious, and diabolical libel." ' '^ "" 

* Rex Ti. Perry and Lambert, 22 St. Tr, 953-1020. 



1796.] LORD KEN YON. 57 

When it was resolved to charge Hardy, Home Tooke, 
and other reforming associates of Mr. Pitt with the 
crime of high treason because they had steadily and 
zealously adhered to the cause which he had deserted, 
the plan at first was that they should be tried before 
Lord Kenyon in the Court of King's Bench ; but some 
apprehension was entertained of his intemperance of 
manner, and they were arraigned at the Old Bailey be- 
fore that quiet and safe Judge, Chief Justice Eyre. But 
William Stone, the London merchant, who was very 
fairly and constitutionally accused of " adhering to the 
King's enemies" by writing letters inviting the French 
to invade England, was tried at the King's Bench bar ; 
and the case being quite unconnected with parliament- 
ary reform or party politics of any sort, Lord Kenyon 
presided on this occasion with great moderation. He 
thus laid down the law : — 

" If a communication is made to a government at war 
with England which may tend to be of any assistance to 
that government in annoying us or defending them- 
selves, such communication is beyond all controversy 
high treason. It will be for the jury to look at the 
papers given in evidence, and consider whether they 
were meant to assist the French in the invasion of this 
country. This is what upon my oath I am bound to 
state to you ; if I misstate it, I shall be corrected by the 
learned Judges who sit near me ; and I shall not be 
sorry to be interrupted if I state anything which renders 
interruption necessary, because it never comes too late 
when the blood of a fellow-subject is at stake ; but I am 
bound to do it : it is not a pleasant task ; but, thus cir- 
cumstanced, unpleasant as the task is to any man of feel- 
ing, I must meet my situation and summon up my 
fortitude as well as I can to discharge it as well as my 
faculties will permit me." 

The letters were very culpable, but Erskine raised a 
doubt in the minds of the jury whether they had been 
written with any treasonable intent, and, after long de- 
liberation, there was a verdict of not guilty.'' 

When the trial came on of the very foolish prosecu- 
tion moved by the Whigs in the House of Common* 
' 25 St. Tr. 1155-1438. 



<:■; REIGX OF GEORGE J II. bl9^. 

against John Reeve for a libel on the English constitu- 
tion, becpuse he had written that " monarchy is the trunk 
from which the two Houses of Parliament had sprung as 
branches," Lord Kenyon thus rather boastfully paraded 
his constitutional learning: — 

•■ Sufficient knowledge of the constitution is a degree 
of knowledge which we all of us have in our several 
stations — at least e\er\- body who has had a libera! edu- 
cation : it is a knowledge we have all of us probably 
about us ; we all know that the legislature of this coun- 
try consists in the King, the Lords, and the Commons ; 
that the exocutive power rests with the King alone, 
liable to be superintended and to be corrected, too, by 
the two Houses of Parliament ; not to be corrected in 
the King's person, because that, by the constitution, is 
inviolable. ' the King can do no wrong,' but to be cor- 
rected in those ministers through whose agency active 
government is carried on." 

He thus concluded, making a new noun-substan- 
tive : — 

" The quo aiiivto, which the prosecution imputes to 
the defendant, is this, that he by this publication in- 
tended to raise and excite jealousies and di\-isions 
among the liege subjects of our Lord the King, and to 
alienate their affections from the government b\- King, 
Lords, and Commons, now duly and happily established 
by law in this countr)-. and to destroy and subxert the 
true principles and the free constitution of the govern- 
ment of the realm. The Attorne_\- General says, the 
pamphlet intended to impress upon the public that the 
regal power and government of this realm might, con- 
sistently with the freedom of this realm as by law de- 
clared and established, be carried on in all its functions 
by the King of this realm, although the two Houses of 
Parliament should be suppressedand abolished. This 
is the quo aniiuo which is imputed to this person, and 
you are to find whether \our coi>sciences are satisfied 
that these were the motives which influenced him in the 
publication." 

In substance this was a very sound direction ; and, 
notwithstanding his recent construction of the late act 
of Parliament in the case of Rex v. Perry, he abstained 



nO'J-\ LOR IJ KEN YON. 



59 



from t';lling the jury whether, in his opinion, the pam- 
phlet was a lifjcl or not. The jury said, "We are of 
opinion that the pamphl'.t is a very improper publica- 
tion, but that the defendant's motives were not such as 
ar'j laid in the information, and therefore we find him 
.voT Guilty.' 

Lord Kenyon's extreme moderation in this case some 
accounted for from the circumstance that the sentiments 
contained in the supposed libel agreed very much with 
his own. When writers, who had taken the other side 
of the question, were prosecuted, he was more and more 
furious against them. 

The very learned, though wrong-headed, Gilbert Wake- 
field, a clergyman of the Church of England, who said 
he was a Reformer, like his divine Master, being prose- 
cuted by the Attorney General as author of a pamphlet 
supposed to have a democratical tendency, and being 
gallantly defended by Erskine, who urged that a little 
indulgence might be shown to the eccentricities of one 
of the finest scholars of whom England could boa-,t, 
Lord Kenyon thus summed up to the jury: — 

"The defendant has stated that his conduct is founded 
upon the doctrines promulgated by the Saviour; but 
surely he has this day shown himself to be very little 
influenced by them. Such are not the feelings and the 
conduet to which the Christian religion gives birth. 
Ingenuas didicisse fideliter artes emollit mores is an ex- 
pression which has often been used, but the experience 
of this case shows that it is not always correct." 

The defendant, speaking in mitigation of punish- 
nent, said — 

" Carmina tantum 
Nostra valent, Lycida ! tela inter Martia quantum 
Chaonias dicunt, aquila veniente, columbas." 

Accordingly he was sentenced to two years' imprison- 
ment in Dorchester jail, and to find sureties for his good 
behavior for five years longer." 

Still more censurable was the conviction of a Mr. Cut- 
hill, a most respectable classical bookseller. Although 
he had published Gilbert Wakefield's other works, he 

• 26 St. Tr. 52V-596. ' 27 St. Tr. 679-760. 



6o REIGN OF GEORGE III. [i799- 

had declined to publish this pamphlet because it was 
not in his line ; but when it had been published by an- 
otljer bookseller, a few copies of it were sold in the de- 
fendant's shop by his servant without his authority or 
knowledge : — 

Lord Kenyan : " Before I enter upon the cause itself, 1 
beg leave to say, that I see no good in what has lately 
taken place in the affairs of another country ; I see no 
good in . the murder of an innocent monarch ; I see no 
good in the massacre of tens of thousands of the sub- 
jects of that innocent monarch ; I see no good in the 
abolition of Christianity; I see no good in the depreda- 
tions made upon commercial property ; I see no good 
in the overthrow and utter ruin of whole kingdoms, 
states, and countries ; I see no good in the destruction 
of the Swiss, a brave and virtuous people. In all these 
things I confess that I see no good." 

He then spoke very disparagingly of the late Libel 
Bill, saying that he had strenuously opposed it as it 
passed through Parliament, adding — 

" It was a race of popularity between two seemingly 
contending parties ;' but in this measure both parties 
chose to run amicably together." 

Having stated that the evidence was abundantly suffi- 
cient to fix the defendant, he thus concluded : — 

" If you think it is possible to keep government to- 
gether with such publications passing through the hands 
of the people, you will say so by your verdict, and pro- 
nounce that this is not a libel ; but in my opinion that 
would be the way to shake all law, all morality, all order, 
and all religion in society. The point is most moment- 
ous in this country, and you are now to determine upon 
it, and to say whether the law is to be preserved, or 
whether everything should be thrown into confusion." 

The Defendant was immediately found guilty ; but 
the usage he had experiened on his trial caused such 
scandal that he was afterwards let off on paying a nom- 
inal fine.' 

' Meaning Foxiies and Pittites. 

• In his violent address to the jury in this case Lord Kenyon alludes to 
the state of affairs then subsisting in Europe, which, although it cannot jus- 
tify his conduct in the trial of "--Qsecutions for sedition, ought very much to 



'799-] LORD KEN YON. 



6i 



The proprietor of the Courier newspaper did not es- 
cape so easily, although his offence was equally venial. 
He had copied into his journal a paragraph stating the 
undoubted truth, that Paul I., Emperor of Russia, had 
made himself odious and ridiculous to his own subjects 
by forbidding the exportation of timber and other 
Russian produce from his dominions to Great Britain. 
Erskine, for the Defendant, contended that the supposed 
libel was a fair comment upon a tyrannical and foolish 
act, and was meant to vindicate the rights of Englishmen, 
not to insult foreigners. 

Lord Kenyan : " What could have induced the Princes 
of Europe to the conduct some of them have pursued, I 
will not venture to investigate ; but, sitting in a court of 
law, I am bound to say that it does not absolve states 
from enforcing a decent respect to the magistracies of 
each other, and to the persons of sovereigns executing 
the law. All governments rest mainly on public opinion, 
and to that of his own subjects every wise sovereign will 
look. Between the sovereign and the people of every 
country there is an express or implied compact for a 
government of justice. Yet the Emperor of Russia is 
here said to be a transgressor of all law. In private life 
a similar charge would be the foundation of an action for 
damages ; and why is a great sovereign to be deprived 
of all remedy ? It is for you, gentlemen of the jury, who 
come out of that rank which enables you to judge of the 
mterests of the commercial world, to pronounce whether 
this is or is not a dangerous publication ? I am bound 
by my oath to declare my own opinion, and I should 

mitigate the censure with which it is to be visited. Nothing could be more 
unfair than to judge him by the standard of propriety established in the 
quiet times in which we live. With shades of difference among politicians 
as to the extension of the franchise, vote by ballot, and the duration of par- 
liaments, all the Queen's subjects are attached to the constitution, and dis- 
posed to obey the law. Then there was a small but formidable party, com- 
posed of some who sincerely believed that for the public good all existing 
institutions should be abolished, and of others recklessly desirous to bring 
about bloodshed and confusion, in the hope of grasping at wealth and 
power for themselves. The great body of the loyal and well-intentioned 
were then in a panic, and thought that the best course for safety was to 
enact new penal laws, and visit with remorseless severity all those persons 
from whom their fears had arisen. Lord Kenyon, I am convinced, on every 
occasion was persuaded that he acted lawfully as well as conscientiously, 
and he was regarded by many as the saviour of his country. 



62 AEIGN OF GEORGE III. [i797. 

forget my duty if I were not to say to you THAT IT IS 
A GROSS LIBEL." 

The Defendant was found Guilty, and reckoned him- 
self lucky to get off with six months' imprisonment, and 
a fine cf ^loo.' 

On the trial of Williams for publishing " Paine's Age 
of Reason," Lord Kenyon, in summing up, tried to rival 
Erskine's famous address in defense of revealed re- 
ligion : — 

" Christianity," said he, " from its earliest institution 
met with its opposers. Its professors were very soon 
called upon to publish their ' Apologies ' for the doc- 
trines they had embraced. In what manner .they did 
that, and whether they had the advantage of their 
adversaries, or sunk under the superiority of their argu- 
ments, mankind for near two thousand years have had 
an opportunity of judging. They have seen what Julian,' 
Justin Martyr, and other apologists have written, and 
have been of opinion that the argument was in favor of 
those publications. We have heard to-day that the light 
of nature and the contemplation of the works of creation 
are sufficient, without any other revelation of the Divine 
will. Socrates, Plato, Xenophon, Tully — each of them 
in their turns professed they wanted other lights, and 
knowing and confessing that God was good, they took 
it for granted the time would come when he would im- 
part another revelation of his will to mankind. Though 
they walked as it were through a cloud, darkly, they 
hoped their posterity would almost see God face to face." 

The talesmen did not know which to admire the most, 
the piety, the learning, or the eloquence of the judge. 
The defendant was very properly found guilty, and 
sentenced to a year's imprisonment with hard labor." 

I now come to a trial at which I was myself actually 
present — the prosecution of Hadfield for shooting at 
George III. 

On the 28th of June, 1800, being yet a boy, for the 
first time in my life I entered the Court of King's Bench, 
and with these eyes I beheld Lord Kenyon. The scene 
was by no means so august as I had imagined to myself. 
I expected to see the Judges sitting in the great hall, 

' 27 St. Tr. 627-642. ' Sic. a 26 St. Tr. 653-720. 



i8oo.] LORD KENYON. 



63 



which, though very differently constructed for magnifi- 
cence, might be compared to the Roman Forum. The 
place where the trial was going on was a small room 
inclosed from the open space at the south-east angle, 
and here were crowded together the judges, the jury, the 
counsel, the attorneys, and the reporters, with little 
accommodation for bystanders. My great curiosity was 
to see Erskine, and I was amazingly struck by his noble 
features and animated aspect. Mitford, the Attorney 
General, immediately inspired the notion of extra- 
ordinary sagacity. Law looked logical and sarcastic. 
Garrow verified his designation of " the tame tiger." 
There were -five or six rows of counsel, robed, and wigged, 
sitting without the bar — but I had never heard the name 
of any of them mentioned before. I was surprised to 
find the four Judges all dressed exactly alike. This not 
being a Saint's day, the Chief Justice did not wear his 
collar of SS to distinguish him from his brethren.' There 
was an air of superiority about him, as if accustomed to 
give rule, but his physiognomy was coarse and contracted. 
Mr. Justice Grose's aspect was very foolish, but he was 
not by any means a fool, as he showed by being in the 
right when he differed from the rest." Mr. Justice Law- 
rence's smile denoted great acuteness and discrimination. 
Mr. Justice Le Blanc looked prim and precise. 

From the opening of the case by the Attorney Gen- 
eral, I formed a very low estimjite of the eloquence of 
the English bar ; but when Erskine began the defense, 
he threw me into a frensy of admiration, and indeed 
I should have been fit for nothing had I been less ex- 
cited ; for this was perhaps his chef d'ceuvre, and, there- 
fore, the finest speech ever delivered at the English bar. 

Lord Kenyon did not interpose till several witnesses 
had distinctly proved the mental hallucination under 
which the prisoner had labored when he fired at the 
King. The solemn proceeding was then thus termin- 
ated : — 

' This was written before I had taken my seat as Chief Justice ; and I 
had erroneously supposed that the collar of SS is worn on saints' day, along 
with the scarlet and ermine. 

' " Grose Justice, with his lantern jaws, 
Throws light upon the English laws." 

Complimentary Epigram by Erskine, 



64 REIGN OF GEORGE III. \M9% 

Lord Kenyan : " Mr. Erskine, have you nearly finished 
your evidence?" 

Mr. Erskine: "No, my Lord, I have twenty more 
witnesses to examine." 

Lord Kenyan : " Mr. Attorney General, can you call 
any witnesses to contradict these facts ? With regard to 
the law as it has been laid down, there can be no doubt 
upon earth. To be sure if a man is in a deranged state 
of mind at the time he commits the act charged as 
criminal, he is not answerable. The material question 
is whether at the very time when the act was committed 
this mans mind was sane f I confess that the facts 
proved convince my mind that at the time he committed 
the supposed offense (and had he then known what he 
was doing, a most horrid offense it was) he was in a very 
deranged state. Mr. Attorney General, you have heard 
the facts given in evidence. To be sure, such a man is 
a most dangerous member of society, and it is im- 
possible that he can be suffered, supposing his mis- 
fortune to be such, to be let loose upon the public. 
But I throw it out for your consideration, whether in 
this criminal prosecution it is necessary to proceed 
further. If you can show it to be a case by management 
to give a false color to the real transaction, then assur- 
edly the defense vanishes." 

Mr. Attorney General: " I must confess I have no 
reason to suspect that "this is a colored case. On the 
contrary, I stated that I understood the prisoner had 
been discharged from the army upon the ground of in- 
sanity. But the circumstances which have now ap- 
peared were perfectly unknown to me." 

Lard Kenyan : " Your conduct, Mr. Attorney General, 
has been extremely meritorious. In the present posture 
of the cause, I will put it to you whether you ought to 
proceed." 

Mr. Attorney General: "Your Lordship will feel how 
much it was necessary for me to wait until I should 
have some intimation on the subject." 

Lord Kenyan : "It was necessary for us all to wait till 
the cause had reached a point of maturity. The prisoner, 
for his own sake and for the sake of society at large, 
must not be discharged. This is a matter which con- 



I799-J LORD KEN YON. 65 

cerns every one of every station from the King on the 
throne to the beggar at the gate.. Any one might fall a 
sacrifice to this frantic man. For the sake of the com- 
munity, he must somehow or the other be taken care 
of, with all the attention and all the relief that can be 
afforded him." 

Attorney General: " I most certainly acquiesce in what 
your Lordship has said." 

Lord Kenyan : " Gentlemen of the jury, the Attorney 
General's opinion coinciding with mine, I believe it is 
necessary for me to submit to you whether you will not 
find that the prisoner at the time he committed the act 
was not under the guidance of reason?" 

The jury finding accordingly, the prisoner was de- 
tained in custody — somewhat irregularly, there being 
then no law to authorize the detention, but the statutes 
46 Geo. III., chapters 93, 94 were passed, legalizing the 
detention in this and all similar cases.' 

On this occasion Lord Kenyon conducted himself with 
great propriety, laying down the sound rule which ought 
to prevail where the defense to a criminal charge is in- 
sanity, and applying that rule with promptness and pre- 
cision to the facts which were proved before him. In 
the next case which I have to mention he was very un- 
fortunate, and he justly incurred considerable obloquy. 

Benjamin Flower, having published a paragraph in a 
Cambridge newspaper of which he was the proprietor, 
reflecting on Dr. Watson, Bishop of Llandaff, complaint 
was made of it in the House of Lords as a breach of 
privilege, and without any summons or hearing of the 
party accused, it was voted a libel, and he was ordered 
to be taken into custody by the Sergeant-at-Arms. Ac- 
cordingly he was arrested at Cambridge, brought a 
prisoner to London, and produced at the bar. A mo- 
tion was then made that for this supposed offense he 
be fined ;^ioo and confined six months in Newgate. 

Lord Kenyon supported the motion, and said there 

was no ground for complaint on the score of severity, for 

if the libel had been prosecuted in the King's Bench, 

the defendant would not have got off with so slight a 

punishment. 

• 21 St. Tr. 1281-1356. 

IV.— 5 



66 REIGN OF GEORGE III. [1799, 

After the defendant had lain some weeks in New- 
gate, he applied for his liberation to the Court of 
King's Bench, by Mr. Clifford, a descendant of the 
Cliffords Earls of Cumberland — when the following dia- 
logue took place between the counsel and the Chief 
Justice : — 

Mr. C. : " I humbly move your Lordship for a writ of 
habeas corpus, to be directed to the keeper of Newgate, 
commanding him to bring into court the body of 
Benjamin Flower." J. C. " Is not Mr. Flower com- 
mitted by the House of Lords for a breach of privilege ? " 
Mr. C. " Yes, for a libel and breach of privilege." C. J. 
"Then you know very well, Mr. Clifford, you cannot 
succeed. This is an attempt which has been made every 
seven or eight years for the last half century ; it regularly 
comes in rotation ; but the attempt has always failed. 
You do not expect to succeed? " Mr. C. " I do expect 
to succeed. I should not make this application unless I 
knew I could support it. My affidavit states, that Mr. 
Flower is imprisoned in Newgate for a supposed libel on 
the Bishop of Llandaff, that he is not conscious of having 
libeled the Bishop of Llandaff or any one else, and that 
he has never been put upori his defense." C. y. " Does 
he swear that it is not a libel on the Bishop of Llandaff? " 
Mr. C. " He swears that he is not conscious that it is a 
libel." C. J. " Another part of his affidavit is also false, 
that he was not put upon his defense. I happened to be 
one of his judges — I was in the House of Lords at the 
time. File your affidavit. Sir, that your client may be 
prosecuted. You shall take nothing by your motion." 

The counsel, however, insisted on being heard, to 
argue the question that the commitment was illegal, and 
at last Lord Kenyon said, — 

" If you will have it, take your writ. It will be of no 
use to you. You move it merely by way of experiment, 
and without any view to benefit your client : I am sure 
of that." 

The defendant being brought up in custody of the 
keeper of Newgate, Mr. Clifford complained bitterly of 
the language of the Chief Justice when the rule was 
granted, and delivered a very long address upon the 
illegality of the commitment, interspersed with manv 



I799-J LORD KEN YON. 67 

sarcastic remarks on the House of Lords and the modern 
nobility by whom it is filled. 

Lord Kenyan : " The learned counsel has drawn a 
picture of a monster established in power by the voice of 
the people, and then doing a great many horrid things — 
among others filling the House of Lords with a banditti. 
The learned counsel, it is true, did not use that word — 
but ' persons who supersede the ancient nobility of the 
country.' I happen to be one of that number: of my- 
self I will say nothing. But if we look back to the 
history of the country, and consider who were made 
peers in former times, and what they were whose 
descendants are now called ' the hereditary nobility of 
the country ; ' if we look back to the reign of Charles 
n., in the letters which form the word CABAL, will the 
memory of the learned counsel, who seems to think 
virtues and vices hereditary, furnish him with the names 
of no persons who were then made peers, although they 
were not very likely to devolve virtues on the succeeding 
ages ? From what has passed, I am called upon to 
vindicate the House of Lords. Their honor stands on 
so stable a ground, that no flirting of any individual can 
hurt them. The public feels that its liberties are pro- 
tected by the two Houses of Parliament. If ever the 
time shall come that any malignant, factious, bad man 
shall wish to overturn the constitution of the country, 
the first step he will take, I dare say, will be to begin by 
attacking in this Court one or both of the Houses of 
Parliament. But all such petty attempts will have no 
effect upon the public mind; they will only recoil upon 
those who make them." 

He then proceeded to lay down the sound rule that 
commitments for contempt by either House of Parlia- 
ment could not be examined into by a court of law, and 
the prisoner was remanded to Newgate." Mr. CHfford 
published a report of the case with a postscript, in which 
he said, — 

" The hereditary boasts one advantage over new 

nobility ; from the very cradle its children are formed to 

the stations which they are destined afterwards to fill. 

Accordingly we seldom observe in our hereditary peers 

' 27 St. Tr. 915-1078. 



68 REIGN OF GEORGE III. [1799. 

those pedantic notions of impracticable morality, or that 
boisterous impetuosity of manners, which sometimes ac- 
company and disgrace even in the highest situations those 
who have been raised to them from the desk, merely on 
account of their industry and professional success.'" 

Lord Kenyon was much more fortunate in supporting 
the inquisitorial power of the two Houses of Parlia- 
ment, and their right to order the publication of what- 
ever they think necessary for the public service, al- 
though it may reflect upon individuals. After Hardy, 
Home Tooke, and Thelwall had been tried for high 
treason and acquitted, a committee of the House of Com- 
mons was appointed to inquire into the condition of the 
country, and made a Report to the House, stating that 
evidence was adduced against them, showing " that they 
and their confederates were decidedly hostile to the ex- 
isting government, and constitution of this kingdom, 
and wished for the subversion of every established and 
legitimate authority." This Report was ordered by the 
House to be printed, and was reprinted and published 
by a bookseller. Against him an application was made, 
on behalf of Home Tooke, to the Court of King's 
Bench, for a criminal information. The defendant made 
an affidavit of the facts, and denied all malicious inten- 
tion whatsoever. Erskine for the prosecution contended 
that the House of Commons, though they might in- 
quire, could not lawfully publish the result of their in- 
quiries to the detriment of any individual, and that at 
any rate the defendant could not justify the republica- 
tion of a libel for his own advantage, because it had 
been published by the House of Commons on pretext 
of the good of the community. 

Lord Kenyon (without hearing the other side) : " This 
is an application for leave to file a criminal information 
against the defendant for publishing a libel ; so that the 
application supposes that this publication is a libel. But 
the inquiry made by the House of Commons was an in- 
quisition made by one branch of the Legislature to en- 
able them to proceed farther and adopt some regula- 
tions for the better government of the country. This 

' This cousia of Lord-Treasurer Clifford was an admirable speaker, and 
might have risen to the highest honors, but he diedyoungfrom intemperance. 



'799. J LORD KEN YON. „g 

report was first made by a Committee of the House of 
Commons, then approved by the House at large, and 
then communicated to the other House ; there it is now 
sud judtce ; yet we are told that it is a libel on the pros- 
ecutor. It is impossible for us to admit that the pro- 
ceeding of either of the Houses of Parliament is a libel ; 
and yet that is to be taken as the foundation of this ap- 
plication. The King v. Williams, so much relied upon, 
was decided in the worst of times, and it has no appli- 
cation to the present case. This a proceeding by one 
branch of the Legislature, and, therefore, we cannot in- 
quire into it. I do not say that we would never inquire 
whether the House of Commons has exceeded its juris- 
diction ; but, acting within its jurisdiction, it cannot be 
controlled by us. An injunction by the House of Com- 
mons to stay proceedings in a common action between 
two indviduals, we should treat as a nullity. But the 
House of Commons having the right to print and pub- 
lish what they consider essential for public information, 
we cannot consider whether they have exercised that 
right properly on any particular occasion, and the indi- 
vidual who suffers from the exercise of it is without legal 
remedy." Lawrence, J. : " It is of advantage to the 
public, and even to the legislative bodies, that true ac- 
counts of their proceedings should be generally circu- 
lated, and they would be deprived of that advantage if 
no person could publish their proceedings without being 
punished as a libeler." ' 

Lord Kenyon, however, with great spirit, and upon 
the soundest principles, would not suffer a peer under 
pretense of Parliamentary privilege to libel a fellow sub- 
ject with impunity. 

The Earl of Abingdon, having quarreled with his at- 
torney, delivered a most calumnious speech against him 
in the House of Lords, and then published it in a news- 
paper. The attorney indicted him for publishing the 
libel. 

The trial coming on before Lord Kenyon at West- 
minster, the noble defendant appeared in Court as his 
own counsel. He modestly abstained from claiming to 
sit on the bench with the Chief Justice, but, remaining 
' ' 8 T. R. 293. 



70 REIGN OF GEORGE III. [1799- 

at the bar, he strenuously insisted on his right to be 
covered, because the Chief Justice and he were both 
peers and entitled to the same privileges. 

Lord Kenyan: " I do not sit on this seat as a peer; 
but, being assigned by our Lord the King as his Chief 
Justice, to hold pleas before him, out of respect to the 
Sovereign of these realms and to the sovereignty of the 
law, the noble Earl must be uncovered." 

The trial proceeded, and it was clearly proved that 
Lord Abingdon had sent his speech in his own hand- 
writing to the newspaper office, with a request that it 
might be published. Being called upon for his defense, 
he contended that the prosecution could not be sup- 
ported, as the alleged libel was printed from the written 
speech which he himself had actually read in his placr. 
in Parliament. 

Lord Kenyan : " Heaven forbid that we should seek 
to animadvert here upon a speech made in Parliament. 
Parliament alone can inquire into the merits of a speech 
so made, and, if it deserves punishment, punish the 
offender. We inquire not what the noble Earl did in 
the House of Lords, but what he did in Catherine- 
street in the Strand, when, by his agent, he delivered a 
paper in his own handwriting containing most calum- 
nious charges against the prosecutor, and requested that 
it might be printed and published. This was the act of 
a simple individual seeking to gratify his malice, and he 
is criminally responsible for it, although he happens 
likewise to be an Earl." 

The defendant was found guilty, and most justly sen- 
tenced to imprisonment.' 

I>ord Kenyon meritoriously checked the doctrine 
which was becoming too rampant, that a man is liable 
for the consequences, however remote or unforeseen, 
which can be traced to his acts. The proprietor of a 
theater having brought an action against a critic for a 

' I Espinasse, 226. In the year 1843 I tried unsuccessfully to carry a 
dause in my Libel Bill to exempt from prosecution or action a true account 
of speeches in Parliament published Sand fide for the information of the 
p&blic ; yet I have been severely censured for not deciding as a Judge that 
neither prosecution nor action can be maintained for a true account in a 
newspaper of anything said at any public meeting. T'ais would, icdeed, 
have been " Judge-made law." 



LORD KEN YON. 71 

libel on one of his performers, alleged in the declaration 
that the defendant, " contriving to terrify and deter a 
certain public singer called Gertrude Elizabeth Mara, 
who had been retained by the plaintiff to sing publicly 
for him, wrote and published a certain malicious paper. 
&c., by reason whereof the said Gertrude Elizabeth 
Mara could not sing without great danger of being as- 
saulted and ill-treated, and was prevented from so sing- 
ing, and the profits of the theater were rendered much 
less than they otherwise would have been." Madame 
Mara, being called as a witness, did swear that on ac- 
count of the obnoxious article she did not choose to ex- 
pose herself to contempt, and had refused to sing. 

Lord Kenyan [stopping the defendant's counsel] : "The 
injury is much too remote to be the foundation of an 
action. An action might equally be supported against 
every man who circulates the bottle too freely and in- 
toxicates an actor, per quod he is rendered incapable of 
performing his part upon the stage. The loss here arises 
from the vain fears and caprice of the actress. This ac- 
tion is to depend, forsooth ! on the nerves of Madame 
Mara!'" 

He likewise did good service in discountenancing the 
rapacity of surveyors. One of these gentlemen insisted 
that he was entitled to 5 per cent, upon all the expend- 
iture in erecting and finishing a house for his trouble in 
paying the tradesmen's bills, and called several wit- 
nesses to prove that this was the usual charge of sur- 
veyors. 

Lord Kenyon : " The plaintiff states in his declaration 
•his demand to be ' as much as he reasonably deserves' 
for his work and labor. Does he reasonably deserve to 
have this exorbitant demand ? As to the custom at- 
tempted to be proved, the course of robbery on Bagshot 
Heath might as well be proved in a court of justice. It 
ought not to be and it cannot be supported." 

The plaintiff was nonsuited.'' 

Lord Kenyon showed a very laudable zeal to_ repress 
the very infamous practice of some fashionable journals 
in his time to invent scandalous stories of persons in 

' Astley V. Harrison, Peake, 256. 
'■' Upsdall V. Stewart, Peake, 255. 



72 REIGN OF GEORGE III. 

"high life." The Morning Post published a paragraph 
referring to Lady Elizabeth Lambert, a very beautiful 
and accomplished girl of seventeen, whose character was 
unspotted and whose manners were irreproachable, stat- 
ing that "she had made 2. faux pas with a gentleman of 
the shoulder-knot." Lady Elizabeth brought an action 
for this calumny, suing by her mother, the Countess 
Dowager of Cavan, as her prochein amie. The defend- 
ant's counsel tried to palliate the case on the ground of 
inadvertence and misinformation, allowing that the 
young lady had never displayed the smallest sign of levity, 
and had always been the pride and joy of her friends. 

Lord Kenyan : " It is seriously to be lamented that 
the very many cases which are brought, some of them 
civil and some criminal, should have no effect on persons 
who publish newspapers to stop the progress of this 
which everybody complains of. If it is to be stopped, it 
is to be stopped by the discretion, good sense, and fort- 
itude of juries. Gentlemen, it is to you, and you only, 
that this lady can look for redress ; and it is not her 
cause only which has been this day pleaded before you — 
it is the cause of injured innocence spread from one end 
of the kingdom to the other ; and therefore if this lady is 
not to be protected, nay, if ordinary damages are to be 
given, and not such as shall render it perilous for men to 
proceed in this way, we are in an unpleasant situation 
indeed, and particularly so when we have heard it open- 
ly avowed in Court by the proprietors and publishers of 
newspapers that their commodity is not suited to the 
public taste unless capsicum is put into it — unless it be 
seasoned with scandal. I do not believe that in all the 
cases of libel ever canvassed, one so criminal as this is to 
be met with. You, gentlemen, are bound to guard the 
feelings of this injured lady ; and what the feelings of 
injured innocence are every one must feel who is not an 
apostate from innocence himself. You, gentlemen, be- 
fore you give your damages, will put yourselves into the 
situation of this injured lady, asking yourselves if those 
whom you are most bound by the laws of nature and of 
God to protect had been insulted in a similar manner, 
what damages you would have expected from a jury of 
your country." 



1 799- J LORD KEN YON. 



73 



The jury found a verdict for the plaintiff with ^4,000 
damages. 

In actions for criminal conversation, his ardent love 
of morality blinded his judgment, prevented him from 
distinguishing the merits of each particular case, and led 
him to confound the principles of civil and criminal 
justice. On one occasion he said : — 

" My endeavors, I confess, to deter men from the 
enormous crime of adultery, have hitherto proved in- 
effectual. But judges and juries are appointed to re- 
dress private and public wrongs ; we are the guardians 
of the morals of the people, and we ought never to relax 
in our efforts to prevent the commission of crimes which 
strike at the root of religion and of domestic purity and 
happiness. It is said here the defendant is not able to 
pay large damages, but this is an aggravation of his mis- 
conduct. Is his poverty to tempt him to injure un- 
fortunate husbands? but it will, if it enables him to do 
so with impunity. I advise you to give ample damages, 
that the vice may be suppressed." 

In another case, in which the wife of the plaintiff (as 
he knew when he married her) was a wanton, it actually 
came out on cross-examination that she not only painted 
her face, but that she exposed her person most inde- 
cently : — 

Lord Kenyan : " I see no ground here for cutting down 
the damages. Such things as are imputed to the plain- 
tiff's wife, are not uncommon among ladies of quality, 
and no mercy should be shown to the defendant (Gen- 
eral Gunning), who is an abominable, hoary, degraded 
creature." 

In the famous case of Howard v. Bingham, he said : — 

" I had not been long in a court of justice, before I 
felt that I should best discharge my duty to the public 
by making the law of the land subservient to the laws 
of religion and morality ; and therefore, in various cases 
that have come before me, when I saw a considerable 
degree of guilt, I have pressed the judgment of juries 
to go along with me in enforcing the sanction of religion 
and morality by the heavy penalties of the law ; and I 
have found juries co-operate with me in trying how far 
the immorality of a libertine age would be corrected by 



74 REIGN OF GEORGE III. 

letting all parties know that they best consult their own 
interest by discharging those duties they owe to God 
and society." 

Such speeches gained him great popularity with the 
vulgar, but made the judicious grieve. Even Lord 
Eldon, when Chief Justice of the Court of Common 
Pleas (although strongly disposed to support him), said, 
on the trial of an action for seduction: — 

" I gladly lay hold of this opportunity of disburdening 
my mind of an opinion that has long lain heavy upon 
me, as it is directly in opposition to the judgment of 
one of the most learned judges and best of men that 
ever sat in Westminster Hall, a man to whom the laws 
of this country, and (what is of more consequence) the 
public morals, are as much indebted as to any man 
among the living or the dead. But, having offered this 
tribute to truth, I am bound, by my oath, to give my 
own opinion, that, in a civil action of this nature, the 
jury are bound by law to consider, in awarding the 
amount of damages, not what may be an adequate pun- 
ishment to the defendant for his criminality, but what 
will be a sufficient compensation to the plaintiff for the 
injury complained of." 

Lord Kenyon likewise carried on a furious war against 
the destructive vice of gaming, which he declared to be 
mischievously prevalent in both sexes. He recom- 
mended that fashionable gaming establishments should 
be indicted as common nuisances, adding this threat, 
which is said to have caused deep dismay : " If any such 
prosecutions are fairly brought before me, and the 
guilty parties are convicted, whatever may be their rank 
or station in the country, though they may be the first 
ladies in the land, they shall certainly exhibit themselves 
in the pillory." 

This ungallant attack upon the fair sex roused a 
chivalous defense from the Earl of Carlisle, who de- 
scribed the sad consequences arising from the tribunals 
of justice being occupied by " legal monks, utterly 
ignorant of human nature and of the ways of men, who 
were governed by their own paltry prejudices, and 
thought they must be virtuous in proportion as they 
were coarse and ill-mannered." 



LORD KEN YON 75 

Lord Kenyon cared nothing for any of these invec- 
tives except the imputation of being a " legal monk." 
This stuck to him very fast, and he frequently com- 
plained of it. When making any observation to the 
jury which he thought very knowing as well as emphatic, 
h$ would say : — 

"But, gentlemen, you will consider how far this is 
entitled to any weight, coming from a legal monk ; for 
a great discovery has been made, that the judges of the 
land, who are constantly conversant with business, who 
see much more of actual life on their circuits and in , 
Westminster Hall than if they were shut up in gaming 
houses and brothels, are only legal monks." 
On another occasion he said : — 

" Somebody tells us that the Judges are legal monks — 
that they know nothing of the world. What is the 
world ? It is necessary to define terms, in order to know 
what the world is, and what is meant by this knowledge 
of the world. If it is to be got by lounging, like young 
men of fashion, about Bond Street, or at gaming-tables, 
or at Newmarket, or in private houses of great men, or 
in brothels, I disavow being acquainted with it. But 
surely something of what may be called a knowledge 
of the world, quicquid AMANT' homines may be contained 
in courts of justice." 

It is said that he went on addressing grand juries on 
the circuit in this strain, till Lord Carlisle threatened to 
bring him before the House of Lords for a breach of 
privilege. 

His indiscreet impetuosity of manner and his want of 
tact sometimes subjected him to the triumph of ribaldry 
and rudeness. In prosecutions for blasphemy, by at first 
interrupting the defendant's counsel without reason, he 
was beaten, and he afterwards allowed an open reviling 
of our holy religion, which he ought peremptorily to 
have stopped. " Christianity is certainly parcel of the 
law of England " in this sense, that openly to insult its 
Divine Author is a misdemeanor which is punishable 
when committed, and which Judges are justified in pre- 
venting. Yet Mr. Stewart Kyd, who called upon the 
prosecutor to produce " a certain book called the Bible," 

1 Sic. 



76 REIGN OF GEORGE III. 

after one or two small victories to which he was strictly 
entitled, was very improperly permitted to ridicule and 
stigmatize at great length the most sacred truths of the 
Gospel. 

On another occasion, John Home Tooke, taking ad- 
vantage of the Chief Justice's hasty temper, succeeded 
in acting such a scene of insolence as no other Judge 
would have endured. At the Westminster election, in 
1788, Mr. Fox, having a large majority on the poll, was 
returned as duly elected, but Home Tooke, the unsuc- 
cessful candidate, presented a petition against him. 
This being referred to a select committee under the 
Grenville Act, was voted " frivolous and vexatious." Mr. 
Fox was thus entitled to his costs, which were taxed at 
;^i98 2.S. 6d., and payment of this sum being refused, an 
action was brought to recover it. The statute provided 
that, on the trial of such an action, no evidence should 
be necessary or receivable beyond the resolution of the 
committee and the taxation of costs verified by the 
signature of the Speaker of the House of Commons. 
Home Tooke now appeared as his own counsel. Erskine, 
for the plaintiff, that he might give his opponent no 
topics to dilate upon, merely said, with his usual dis- 
cretion, " I am forbidden by the Act of Parliament to 
enter into any discussion of the merits of this case, or 
anything relating to them. I will, therefore, merely puf 
in the statutable evidence to entitle Mr. Fox to your 
verdict for the sum of ;£'i98 2s. 6d." This evidence he 
gave in the course of two minutes, and said, " This, my 
Lord, is my case." 

Lord Kenyoh, although he had been told that the 
defendant was to attend as his own counsel and to make 
a " terrible splash," said, in a sharp, contemptuous tone, 
" Is there any defense ? " 

Home Zw/fe^ (taking a pinch of snuff, and looking round 
the Court for a minute or two): "There are three 
efficient parties engaged in this trial— you, gentlemen of 
the jury, Mr. Fox, and myself, and I make no doubt 
that we shall bring it to a satisfactory conclusion. As 
for the Judge and the Crier, they are here to preserve 
order ; we pay them handsomely for their attendance', 
and, in their proper sphere, they are of some use ; but 



LORD KEN YON. 77 

they are hired as assistants only ; they are not, and never 
were, intended to be the controllers of our conduct. 
Gentlemen, I tell you there is a defense, and a very good 
defense, to this action, and it will be your duty to mve 
effect to it." ^ ^ 

He then began a long narrative of the last Westminster 
election, and, without any interruption, had come to 
what he called the financial part of it, stating that Lords 
of the Treasury were expected to pay ;£'200 a piece, and 
those in higher situations more, according to their 
salaries. At last. Lord Kenyon burst out : — 

" Mr. Home Tooke, I cannot sit in this place to hear 
great names and persons in high situations calumniated 
and vilified — persons who are not in this cause — persons 
who are absent, and cannot defend themselves. A court 
of Justice is not a place for calumny ; it can answer no 
purpose ; you must see the impropriety of it, and it 
does not become the feelings of an honorable man." 

H. T. (again taking snuft) : " Sir, if you please, 
we will settle this question between us now in 
the outset, that I may not be liable to any more inter- 
ruptions." 

C. J. : " Lord Lovat brought forward offensively the 
names of persons of great respectabiHty, and he was 
stopped by the House of Lords. The Chancellor in- 
formed him that it was indecent to do so, and that a man 
of his station ought to refrain from such things. You 
are in the wrong path, Mr. Home Tooke." 

If. T. : " I am persuaded that I shall be able very 
easily and very shortly to satisfy you that I am not in 
the wrong path, and it is more desirable that I should 
do so now, because it is the path which I most certainly 
mean to pursue, and will not be diverted from. You 
know (at least you ought to know), and I acknowledge, 
that if, under the pretense of a defense in this case, I 
shall wantonly and maliciously say or do any word or 
thing which would be punishable by the laws of the 
land, if said or done by me wantonly and maliciously 
anywhere else, I shall be equally liable to prosecution 
and punishment by the same laws and in the same man- 
ner for what I shall say here. But, Sir (taking another 
pinch of snuff, and lowering his voice, so as effectually 



78 REIGN OF GEORGE III 

to fix the attention of the audience), you have made use 
of some words which I am willing to believe you used 
in a manner different from their usual acceptation. You 
spoke of calumniating and vilifying. Those words, Sir, 
usually include the notion ol falsehood. Now, I pre- 
sume you. Sir, did not mean them to be so understood. 
I am sure you did not mean to tell the jury that what I 
said was false. By calumny you only meant something 
criminatory — something injurious to the character of 
the person spoken of — something that he would not like 
to hear, whether true or false." 

C. J. : " Certainly, Mr. Home Tooke ; certainly." 

H. T. (with an affectation of good nature) : " Well, I 
thought so ; and, you see, I was not desirous to take ad- 
vantage of the words to impute to you any wrong mean- 
ing or intention ; because, had you really intended false- 
hood in the calumny, your Lordship would have grossly 
calumniated me. I have spoken nothing but the truth, 
as I believe you know, and which I am able and willing 
to prove. In one thing I go farther than you do, and 
am stricter than you are. I think it hard that any per- 
sons, whether in a cause or out of a cause, should at any 
time unnecessarily hear what is unpleasant to them, 
though true. This rule I mean to observe. At my peril 
I shall proceed, and I expect to meet with no farther in- 
terruption from your Lordship." 

Having thus gained a complete mastery over the 
Chief Justice, he proceeded to waste the public time 
most shamefully, and to make many observations which 
ought to have been stopped, and with discretion and 
firmness might easily have been stopped by the Judge. 
Thus he ridiculed the prevailing notion of " the inde- 
pendence of the Judges:" — 

" When anything peculiarly oppressive is now-a-days 
to be done, we have always a clatter made about the 
judicial independence with which we are now blessed. 
My own belief is, that the Judges are now much more 
dependent on the Crown and much less dependent on 
the people than in former times, and, generally speaking, 
they were certainly more independent in their conduct. 
They then sat on the bench, knowing they might be turned 
down again to plead as common advocates at the bar : 



LORD KEN YON. 79 

and indeed it was no uncommon thing in those days to 
see a counsel at the bar browbeaten and bullied by a 
Chief Justice on the bench, who in a short time after 
was to change places with the counsel and to receive in 
his own proper person the same treatment from the 
other in his turn. Character and reputation were then 
of consequence to the Judges, for if they were not well 
esteemed_ by the public, they might be reduced to abso- 
lute destitution ; whereas if they were sure of being 
well employed on returning to the bar, dismissal from 
their poorly paid offices was no loss or discredit, and 
they might set the Crown at defiance. Now they are 
completely and forever independent of the people, and 
from the Crown they have everything to hope for them- 
selves and their families. Till the corrupt reign of 
James II., no common law Judge was enobled. Chief 
Justices Cope and Hale, infinitely greater lawyers and 
abler men than any of their successors in our time, lived 
and died commoners. Who was the first judicial Peer ? 
The infamous Judge Jeffreys. But in his campaign in the 
West, and on other occasions, he had done something 
to deserve and to illustrate the peerage. Now-a-days the 
most brilliant apprenticeship to the trade of a Peer is 
to carry a blue bag in Westminster Hall ! This sud- 
denly leads to riches, and the lawyer suddenly rich is 
made a Baron ; whereas the fact of some particular indi- 
vidual of suspicious character being all of a sudden fiush 
of money who was never known to have any before, 
often in the good old times led to the certain detection 
of the thief." 

He then, to show how badly justice was administered, 
told a long story of a prosecution which he had insti- 
tuted against some rioters at the Westminster election 
being defeated by a single circumstance of his counsel 
having entered the court a few minutes after nine in the 
morning, the Chief Justice having ordered them all to 
be acquitted for want of prosecution. Mr. Garrow here 
interposed, and by stating the true facts of the case, 
showed that Mr. Tooke, his counsel, attorney, and wit- 
nesses, had all been guilty of gross negligence, and that 
the Chief Justice had shown upon that occasion great 
patience and indulgence ; — 



8o REIGN OF GEORGE III. 

H. T. : " There can be no doubt at all but that your 
Lordship will always find some one in your own Court 
willing and ready to get up and recommend himself to 
your favor by a speech in your defense. I should have 
been surprised if it had not been the case now ; but I 
must rather thank Mr. Garrow, for he has given me time 
to breathe a while." 

C. y. .• " I want no defense, Sir ; I want no defense, 
no defense. What has been said against me rather ex- 
cites my compassion than my anger. I do not carry 
about me any recollection of the trial alluded to, or any 
of its circumstances." 

U. T. : " I cannot say that I carrj/ about me anything 
in consequence of it. I carry about me something less, 
by all the money which it took out of my pocket. Al- 
though Mr. Garrow has jumped up to contradict me, the 
affair happened exactly as I stated it. I heard him with 
much pleasure, for, as I said, I wanted to breathe. But 
we may have a different House of Commons, to consist 
of the real representatives of the people, of whom I may 
happen to be one, and I pledge myself now that I will, 
in my place there, call you, my Lord, to a proper account 
for your conduct that day, and Mr. Garrow may reserve 
his justification of your Lordship's conduct till that time, 
when I fear you will stand greatly in want of it. Now, 
gentlemen, having proved to you how a Judge may be 
made courteous and quiet, and may be taught to confine 
himself to the discharge of his proper duties in this 
place, I shall conclude by asking you, who alone have 
anything to 'do with the verdict, whether you think it 
fair I should pay the costs incurred by Mr. Fox as can- 
didate for Westminster, and you will well and truly try 
that which is the true and the only issue between us." 

C. J. : " Gentlemen, you are bound by your oaths 
'well and truly to try this cause,' and the question is, 
whether by the law of the land the defendant is bound 
to pay the plaintiff this sum of £\g% 2s. 6d. Now, 
gentlemen, by the law of the land, if the petitioner re- 
fuses to pay the costs of an election petition, voted friv- 
olous and vexatious, when duly taxed as the Act directs, 
he may be brought before a court of justice and com- 
pelled to do so. If you believe the evidence (which is 



LORD KEN YON. 81 

not contradicted), you have such a case before you, and 
you will ' well and truly have tried this cause' by finding 
a verdict for the plaintiff for the sum demanded." 

Nevertheless, several of the jury had been much cap- 
tivated by Home Tooke's eloquence, and they cared 
very little for the direction of a Judge who had suffered 
himself to be so insulted. Therefore, it was not until 
after a struggle of four hours and twenty minutes that 
they were induced to concur in finding a verdict for the 
plaintiff.' If Lord Mansfield had presided on this occa- 
sion, without ever having been angry or excited, he 
would have put a speedy end to such attempts at ribald- 
ry, and Home Tooke would have left the court not only 
defeated, but disgraced. 

I cannot justly conclude my notice of Lord Kenyon's 
judicial decisions, without pointing out a few of them in 
which he was egregiously wrong. An application was 
made to the Court of King's Bench for a criminal in- 
formation against the printer of a newspaper. In this 
newspaper had appeared the following paragraph "of 
and concerning" the prosecutor, the then Earl of Lons- 
dale, who, from being engaged in constant litigation 
with all his neighbors, had the reputation of being " the 
greatest law Lord in England": — 

" The painters are much perplexed about the likeness 
of the Devil. To obviate this difficulty concerning 
His Infernal Majesty, Peter Pindar has recommended 
to his friend Opie the countenance of Lord LONS- 
DALE." 

Now, this impudent attack, however indecorous, was 
hardly sufficiently grave to be made the foundation of a 
common action or indictment, but was wholly unfit for 
the special interference of the Court of King's Bench — 
which is only to be invoked in cases of real importance. 
Erskine accordingly thought that he should laugh it out 
of Court. 

" The noble Earl can only apply to your Lordships 
from a sense not of wounded character but of woundea 
beauty — spretce injuria formce. There is no hidden mal- 
ice in the writer — he does not recommend that this por- 
trait of the devil should be painted with horns." 
' I Townsend, 59. 
IV. — 6 



82 REIGN UF GEORGE III. 

Lord Kenyan : "The tongue of malice has never said 
that." 

Erskine : "True, my Lord, and nothing could be 
meant but a comparison of bodily appearance, without 
any insinuation that there was a mental likeness. And 
here, my Lords, without any disrespect to the noble 
prosecutor, I must be allowed to say that the paragraph 
is not a libel on him, but on the devil. That great per- 
sonage would doubtless apply to your Lordships for 
protection, had it not been for the maxim that ' those 
who apply to your Lordships must come into court with 
clean hands.' Although Lord Lonsdale may reckon him- 
self a very handsome n.an, he should recollect that to 
liken his countenance to that of the devil is a high com- 
pliment. In appearance he falls greatly short of the 
devil, and therefore he ought to have been much flat- 
tered by the comparison. I would (though a poor man), 
for the sake of my family, give Opie or Fuseli one hun- 
dred guineas for a likeness of myself verifying the de- 
scription of his infernal majesty in Milton: — 

" ' He above the rest, 
In shape and gesture proudly eminent 
Stood like a tower : his form had not yet lost 
All her original brightness, nor appeared 
Less than archangel ruined, and the excess 
Of glory obscured.' 

" The devil was still handsome, even in the most un- 
promising masquerade, when he entered the body of a 
serpent. In addressing Eve, we are told, ' pleasing was 
his shape and lovely.' Wh)', then, should Lord Lons- 
dale be afraid that the devil depicted with the features 
of his Lordship must excite disgust ? But, my Lords, 
the paragraph is mere pleasantry, quite unsuited to your 
Lordships' notice." 

Lord Kenyan : "I am of opinion that we should pro- 
tect the characters of individuals from ridicule and con- 
tempt. We must abide by the rules which the Court 
has laid down, and not be led away by the brilliancy 
and imagination of an advocate. Let the rule be made 
absolute." 

The puisnes, who had not been consulted before this 
judgment was pronounced, looked aghast. From their 



LORD KENYON. 83 

demeanor during Erskine's speech they were supposed 
to be on his side, but they remained silent. 

In Haycraft v. Creasy, Lord Kenyon was very prop- 
erly overruled by his brother judges, and the mortifica- 
tion which he suffered was supposed to have occasioned 
his death. The action was brought by a shopkeeper 
against a credulous old gentleman for having given a 
deceitful representation of the character and circum- 
stances of a young lady of the name of Robinson, where- 
by the plaintiff had been induced to sell to her a large 
quantity of goods on credit, the price of which he had 
lost. The defendant having, like many others, been 
deceived by her arts, and really believing that what he 
said was true, told the plaintiff that she was a lady of 
great fortune and heiress of the estate of Fascally, in the 
county of Perth, and that she was not only respectable 
herself, but nearly connected with some of the highest 
families in Scotland. In truth she was a mere adven- 
/turess, and swindled all that would trust her. Law, for 
the defendant, contended that the action could not be 
maintained, as there was no mala fides to support it, and 
to make him liable without actual deceit would be to 
treat him as surety for Miss Robinson without any 
written guarantee. 

Lord Kenyon : " The Attorney General relies on the 
Statute of Frauds. To this I shortly reply by saying 
that the Statute of Frands has nothing to do with this 
case. The defendant is sued, not as surety for Miss 
Robinson, but for stating respecting her that which was 
not true, and which he had the means of knowing and 
must be supposed to have known, was not true, whereby 
a damage has been suffered by the plaintiff. If the 
present action cannot be supported, I have now for 
twelve years been deceiving the people of this country. 
Am I now, when perhaps from years the progress of my 
intellect may be to retrograde, to unsay v/hat I have 
said so often ? Where can I go to hide my head if this 
point should now be decided otherwise ? What can I 
say to the people of this country? The ground I go 
upon is this : Did the defendant assert to be true that 
which he did not know to be true? This I consider 
sufficient evidence to support the charge of fraud. It 



84 REIGA OF GEORGE 11/ 

may not amount to moral turpitude, but it is, in my opin- 
ion, sufficient to constitutelegal fraud, and legal fraud is, 
in my opinion, enough to support an action of deceit." 

Grose, Lawrence, and Le Blanc, Js., however, on the 
assumption that the defendant was a dupe, clearly held 
that he could not be made liable in this form of action, 
which supposed that the defendant had stated what he 
knew to be false, or that, from some bad motive, he had 
stated as true facts which were untrue, and the truth of 
which had not been investigated. As his brethren pro- 
ceeded seriatim in this strain, the Chief Justice's face 
showed the most terrible contortions ; and when they 
had finished he exclaimed : — 

" Good God ! what injustice have I hitherto been 
doing ! What injustice have I been doing !" 

A gentleman who witnessed the scene says : — 

" It was visible to every person in court that this 
ejaculation was not uttered in the penitent voice of re- 
gret for any injustice he might unconsciously have done 
from a mistake of the law, but in the querulous tone of 
disappointed pride, from finding that the other judges 
had presumed to think for themselves, and to question 
the supremacy of his opinion." ' 

No case of witchcraft ever having come before Lord 
Kenyon, we do not exactly know his opinions upon this 
subject, but he was probably sufficiently enlightened to 
have held that the statutes against it having been all 
expressly repealed, it could not be dealt with by the 
criminal courts as a temporal offense. He was, how- 
ever, enthusiastically devoted to the doctrine that, al- 
though the statutes against forestalling and regrating 
had " in an evil hour " been all expressly repealed, any 
such offense was still a misdemeanor at common law. 
and deserved to be punished with exemplary severity. 
Dearth in bad seasons he imputed to the combinations 
of farmers and the speculations of corn-merchants. Buy- 
ing provisions to resell to the consumers he allowed to 
be legitimate commerce, as the farmer could hardly sell 
the produce of his farm by retail ; but any buying of 
provisions with a view to sell to a dealer at an advanced 
price, he declared had a direct tendency to deprive the 

' Note-book of a Retired Barrister. 



LORD KEN YON. 8 5 

poor of the necessaries of life, and therefore " blinked 
upon murder." The notion that the price of commodi- 
ties is regulated by the proportion between the supply 
and the demand, he thought was only fit to be enter- 
tained by democrats and atheists. These sentiments 
were at the time highly popular, and contributed to raise 
his reputation as a great judge. 

The first case in which he prominently propounded 
them was the King v. Waddington,' in which he granted 
a criminal information against the defendant for enter- 
ing into forehand bargains with hop growers to buy 
from them at a fixed price all the produce of their hop- 
gardens for a year. After a verdict of guilty, the de- 
fendant was brought up for judgment, and the legality of 
the conviction being questioned, Lord Kenyon said : — 

" It has been contended that if practices such as those 
with which the defendant stands charged, are to be 
deemed criminal and punishable, the metropolis would 
be starved, as it could not be supplied by any other 
means. I by no means subscribe to that position. I 
know not whether it be supplied from day to day, from 
week to week, or how otherwise ; but this is to me 
evident, that in whatever manner the supply is made, if 
a number of rich persons are to buy up the whole or a 
considerable part of the produce from whence such sup- 
ply is derived, in order to make their own private and 
exorbitant advantage of it to the public detriment, it 
will be found to be an evil of the greatest magnitude ; 
and I am warranted in saying that it is a most heinous 
offense against religion and morality, and against the 
established law of the country. So far as the policy of 
the system of laws has been called in question, I have 
endeavored to inform myself as much as lay in my 
power, and for this purpose I have read Dr. Adam Smith's 
work, and various other publications upon the same sub- 
ject, though with different views of it. I do not pretend 
to be a competent judge in this conflict of public opinion, 
though I cannot help observing that many of those_ who 
have written in support of our ancient system of juris- 
prudence, the growth of the wisdom of man for so many 
ages, are not, as they are alleged by some to be, n)-n 
' I East, T43, 166. 



86 REIGN OF GEORGE III. 

writing from their closets without any knowledge of the 
affairs of life, but persons mixing with the mass of society 
and capable of receiving practical experience of the 
soundness of the maxims they inculcate." 

The defendant was punished by imprisonment and a 
heavy fine. 

But Lord Kenyon's most elaborate and most ap- 
plauded attack against forestallers and regraters was on 
the trial of an eminent corn-merchant of the name of 
Rusby, who stood indicted before him at Guildhall, for 
having bought a quantity of oats, and having resold 
them to another corn-merchant at a profit in the course 
of the same day. Thus, in a most impassioned tone, and 
with an assumption of peculiar solemnity, he summed 
up the evidence : — 

" It frequently becomes the duty of juries in this place 
to decide causes where the interests of individuals are 
concerned, but a more important duty is imposed upon 
you to-day. This cause presents itself to your notice on 
behalf of all ranks, rich and poor, but more especially 
the latter. Though in a state of society some must have 
greater luxuries and comforts than others, yet all should 
have the necessaries of life ; and if the poor cannot exist, 
in vain may the rich look for happiness or prosperity. 
The legislature is never so well employed as when they 
look to the interests of those who are at a distance from 
them in the ranks of society. It is their duty to do so ; 
religion calls for it ; humanity calls for it ; and if there 
are hearts not awake to either of those feelings, their 
own interest would dictate it. The law has not been 
disputed : for though in an evil hour all the statutes 
which had been existing above a century were at one 
blow repealed, yet, thank God, the provisions of the 
common law were not destroyed. The common law, 
though not to be found in the written records of the 
nation, yet has been long well known. It is coeval with 
civilized society itself, and was formed from time to time 
by the wisdom of mankind. Even amongst the laws of 
the Saxons are to be found many wise provisions against 
forestalling and offenses of this kind ; and those laws 
laid the foundation of our common law. Speculation 
has said that the fear of such an offense is ridiculous ; and 



LORD KEN YON. 87 

a very learned man — a good writer — has said ' you may 
as- well fear witchcraft.' I wish Dr. Adam Smith had 
lived to hear the evidence of to-day, and then he would 
have seen whether such an offense exists, and whether it 
is to be dreaded. If he had been told that cattle and 
corn were brought to market, and there bought by a man 
whose purse happened to be longer than his neighbor's, 
so that the poor man who walks the streets and earns his 
daily bread by his daily labor could get none but through 
his hands, and at the price he chooses to demand ; that 
it has been raised '^d., 6d., gd., is., 2s., and more a quarter 
on the same day, would he have said there is no danger 
from such an offense? Gentlemen, we are not 'legal 
monks,' as was said in another place, but come from a 
class of society that, I hope and believe, gives us op- 
portunities of seeing as much of the world, and that has 
as much virtue amongst its members as any other, how- 
ever elevated. It has been said that in one county — I 
will not name it — a rich man has placed his emissaries to 
buy up all the butter coming to the market ; if such a 
fact does exist, and the poor of that neighborhood can- 
not get the necessaries of life, the event of your verdict 
may be highly useful to the public." ' 

A verdict of guilty being instantly pronounced, Lord 
Kenyon said : " Gentlemen, you have done your duty, 
and conferred a lasting obligation on your country." 
The defendant was sentenced to a heavy fine and long 
imprisonment. 

The cry was then as strong for protection against fore- 
stallers as it ha's more recently been for protection against 
foreign importation ; and so general was the agitation 
that corn-merchants were in great danger of being torn 
to piece by judge-led mobs. I am ashamed to say that 
most of the puisne judges participated in the hallucina- 
tion of the King's Bench, insomuch that Sydney Smith 
thus wrote in his old age: — 

" This absurdity of attributing the high price of corn 
to the combinations of farmers and the dealings of mid- 
dle-men was the common nonsense talked in the days 
of my youth. I remember when ten judges out of twelve 
laid down this doctrine in their charges to the various 
grand juries on their circuits." 

' Peake, N. P. Cas. iSq. 



CHAPTER XLV. 

CONCLTJSION OF THE LIFE OF LORD KENYON. 

LORD KENYON had been very temperate in his 
diet, and had enjoyed uninterrupted health till 
he entered his 70th year. He then began to show 
symptoms of decay, which some attributed to his defeat 
in Haycraft v. Creasy, and some to the dangerous illness 
of his eldest son. The Chief Justice was exceedingly 
amiable in all the relations of domestic life, and to this 
promising young man, who was expected to be the 
heir of his vast accumulations, he was particularly at- 
tached. 

In the autumn of 1801, there was imposed upon him 
the melancholy duty of closing the eyes of him from 
whom he had expected that the pious office would be 
performed for himself. When gazing into the open tomb 
of his first-born, he is said to have exclaimed : " It is 
large enough for both." 

On the first day of next Michaelmas term the Chief 
Justice returned to his court a sorrow-stricken, heart- 
broken man. He was hardly able to hold up his head ; 
not even a " regrating" case from the Oxford Circuit 
could excite him ; and as soon as term was over, leaving 
the Nisi Prius business to be done by Mr. Justice Le 
Blanc, he went into Wales, in the hope of being recruited 
by the air of his native mountains. He rallied a little, 
and came back to London on the approach of Hilary 
Term ; but he was only able to take his seat in court for 
a single day. 

As a last resource he was advised to try the waters of 
Bath. All would not do. The appointed hour for the 
termination of his career was at hand. He had row an 
attack of black jaundice, and it was found that his con- 
stitution was entirely exhausted. For several weeks he 
lay in bed, taking hardly any sleep or nourishment. 



LORD K EM YON. 89 

However, he suffered little pain ; and having retained 
his mental faculties to the last, on the 4th of April, 1802, 
he expired, perfectly resigned to the will of God, and 
gratefully expressing his sense of the many blessings 
which he had enjoyed. His remains were conveyed to 
the family cemetery in the parish of Hanmer, and there 
deposited in the same grave with those of his beloved 
son. A splendid monument has been erected to his 
memory, containing a minute enumeration of his offices, 
and of his virtues. But a more simple and touching 
tribute to him was paid in a letter from his second son 
— to whom descended with his title his more amiable 
qualities : — 

" He has left a name tQ which his family will look up 
with affectionate and honest pride, and which his coun- 
trymen will remember with gratitude and veneration as 
long as they shall continue duly to estimate the great 
and united principles of religion, law, and social or- 
der ; no Welshman ever exhibited more eminently two 
traits of Cambria — warmth of heart and sincerity of 
character." 

Anxious to suppress nothing that has been said in his 
praise, I add that the following character of his country- 
man, the learned civilian Sir Leoline Jenkins, was de- 
clared by a respectable writer to be equally applicable to 
the Cambrian Chief Justice of England : — 

"' Impartial in the administration of justice, without 
respect of persons or opinions, he was not only just be- 
tween man and man in all ordinary cases, but also where 
his intimate friend, his patron, his enemy, or his own 
intimate friend interfered ; for, in a word, he seemed to 
have loved justice as his life and the laws as his inherit- 
ance, and acted as if he always remembered whose image 
and commission he bore, and to whom he was account- 
able for the equity of his decrees. He was a man of ex- 
cellent piety and unaffected devotion ; he did not use 
hi^ religion as a cloak to cover or keep him warm, but 
was early acquainted with religious principles and prac- 
tices, and through the whole course of his life he was a 
serious and sincere Christian, of a strong and mascu- 
line piety, without any mixture of enthusiasm or super- 
stition." 



90 



REIGN OF GEORGE III. 



I must, however, in the discharge of my duty as a 
biographer, discriminate between his merits and his de- 
fects, and having done so, I can by no means consent to 
his being placed in the first rank of English Judges. 
That he was a truly religious and strictly moral man, 
might equally have been said of him had he, according 
to his original destination, spent his life as an attorney 
at Nantwich. When placed at the head of the common 
law as Chief Justice, he did, in the midst of some grum- 
bhng and sneering, command a considerable portion of 
public veneration. He was not only devoted to the dis- 
charge of his public duties and zealously desirous to do 
what was right, but his quickness of- apprehension and 
his professional knowledge generally enabled him to 
come to a rapid and a sound decision in the various 
cases which he had to adjudicate. But he was far from 
being a scientific jurist ; he could very imperfectly ex- 
plain the rule of law by which he was governed, and 
when in private he was asked for his reasons, he would 
answer, " I vow to God that it is so." 

He is said to have been a very great favorite with 
common juries, and, according to the slang of Westmin- • 
ster Hall, always to have carried off the verdict.'' This 
was said to be because " he never fired over their heads, 
and he knew how to hit the bird in the eye." But he 
never combated the prejudices of the jury. He even en- 
couraged that universal prejudice of the lower orders 
against attorneys, by which I have frequently seen the 
administration of justice perverted. Although bred in 
an attorney's office and long aspiring no higher than to 
be an attorney, he seemed to think the whole order pet- 
tifoggers, and their occupation almost necessarily disrep- 
utable. Instead of restricting his animadversions to pec- 
cant individuals, he extended an angry suspicion to a 
whole class, containing many men as honorable as him- 
self, and much his superiors in education and manners. 
He talked of striking an attorney off" the roll as he might 

' i, e. that juries found upon the facts according to the opinion which 
he intimated to them. " His very failings won their lilcing ; his preju- 
dices were theirs ; they with him loved to detect some knavish trick in 
an attorney ; with him they lield in pious horror the fashionable xices of 
the ^reat, and the faults in his address against taste and correct idiom 
were beauties in their ears." Townsend, vol. i. p. 65 



LORD KENYOJV. 91 

of dismissing a footman who had offended him. A naval 
officer having been arrested at a ball, Lord Kenyon at 
once jumped to the conclusion that this must have been 
by the orders of the plaintiff's attorney, saying that "it 
must be matter for consideration whether a practitioner 
who had so misconducted himself ought to remain on 
the rolls of the court." When a trial, expected to last 
the whole day, had unaccountably gone off, so that the 
following causes were struck out, the attorneys not hav- 
ing their witnesses in attendance, he advised that ac- 
tions should be brought against all the attorneys for 
negligence. 

" His hatred of dishonest practices," says a barrister 
who attended his Court, " had lit up a flame of indigna- 
tion in his breast, but it was an igjtis fatnus which fed 
him into error. He gave too easy credit to accusation, 
and formed an opinion before he suffered his judgment 
to cool. He decided \Ahile under the influence of a 
heated temper, and often punished with unreflecting se- 
verity. The effect of this intemperate mode of admin- 
istering justice my memory recalls with painful recollec- 
tion in the case of a Mr. Lawless, an attorney and an 
honorable member of that profession. He was involved 
in the general and groundless proscription of the day. 
Complaint was made to the Court against him for some 
imputed misconduct, grounded on an affidavit which the 
event proved was a mass of misrepresentation and false- 
hood ; but it being on oath and the charges serious, it 
was thought sufficient to entitle the party applying to a 
rule to show cause why Mr. Lawless should not answer 
the matters of the affidavit. Natural justice would point 
out, and the practice of the Court was conformable to it, 
that he should be heard in answer before he was con- 
victed. For that purpose a day is given by the rule on 
which the party is to show cause, during which time 
everything is considered as suspended. This indulgence 
was refused to Mr. Lawless. Lord Kenyon, in addition 
to the common form of the Court's assent to the ap- 
plication ' take a rule to show cause,' added, ' and let 
Mr. Lawless be suspended from practicing until the rule 
is disposed of.' He happened to be present in Court 
when this unexampled judgment was pronounced, and 



92 REIGN OF GEORGE III. 

heard the sentence which led to his ruin. He rose in a 
state of the most bitter agitation : ' My Lord, I entreat 
you to recall that judgment ; the charge is wholly un- 
founded ; suspension will lead to my ruin ; I have eighty 
causes in my office.' What was Lord Kenyon's reply 
to this supplicatory appeal to him ? ' So much the worse 
for your clients, who have employed such a man ! You 
shall remain suspended until the Court decides on the 
rule.' The rule came on to be heard at a subsequent 
day after the affidavits on the part of Mr. Lawless had 
been filed. The charges against him were found to be 
wholly without foundation, and the rule was accordingly 
discharged. Mr. Lawless was restored to his profession, 
but not to his character or peace of mind. He sank 
under the unmerited disgrace, and died of a broken 

heart." ' 

But although individuals might suffer from his pre- 
cipitancy. Lord Kenyon's strong dislike of chicanery had 
a salutary effect upon the practice both of attorneys and 
barristers. Sham pleas, which had become much 
multiplied, were, by a threat to ask who had signed them, 
restrained to "judgment recovered," or " a horse given 
in satisfaction," and the misrepresentation of authorities 
in arguments at the bar was checked by a proposed rule 
of Court, requiring that " all cases should be cited on 
affidavit." 

I ought gratefully to record that he was very kind to 
the students who attended the Courts. I cannot say 
that I ever heard (with one exception) of his inviting 
any of us to dinner, but I have a lively recollection that 
our box being near the bench at Guildhall — while the 
counsel were speaking he would bring the record to us 
and explain the issues joined upon it which the jury 
were to try." 

' Townaend, vol. i. p. 65. 

' The following anecdote I have heard related of Lord Kenyon by and 
before very decent people, and it ought not to be lost, as it illustrates his 
character and the manners of the age in which he flourished. In those days 
retiring-rooms for the use of the Judges were unknown, aild a porcelain 
vase, with a handle to it, was placed in a corner of the Court at the ex- 
tremity of t'je bench. In the King's Bench, at Guildhall, the students' box 
(in which I myself have often sat) was very near this corner. One day 5. 
student w)io was taking notes, finding the ink in his little ink-bottle very 
thick, used the freedom secretly to discharge the whole of it into my Lord's 



LORD KEN YON. 93 

When placed at the head of the common law, Lord 
Kenyon affected to talk rather contumeliously of the 
Equity Courts. A suitor against whom he had decided, 
threatened to file a bill of discovery. " Go to Chancery ! '' 
exclaimed the Chief Justice, " Abiin malam rem." Lord 
Thurlow, meeting him soon after, said to him, " Taffy 
when did you first think that the Court of Chancery was 
such a mala res ? I remember that you made a very 
good thing of it. And when did soHcitors become so very 
odious as I am told you now represent them ? When 
they gave you briefs you did not treat them as such 
atrocious ruffians." 

We have nothing to say of Lord Kenyon as an orator 
or statesman more than as a philosopher. He had no 
high opinion of Mr. Pitt, to whom he was indebted for 
his elevation — and he complained that this leader, even 
after being in office, professed a love for parliamentary 
reform, and actually carried through Fox's Libel Bill. 
He declared that he himself was a loyal subject — not a 
political partisan. He expressed the most unbounded 
admiration of the character of George HL This he made 
the subject of his constant eulogy in his addresses to 
grand juries on the circuit — and, it being contrary to 
etiquette for the bar to be present on these occasions, so 
that the same address may be constantly repeated, he 
used to sound the royal praises nearly in the same lan- 
guage, and always to conclude with this quotation from 
Scripture : " Our good King may say with Samuel of 

porcelain vase. His Lordship soon after having occasion to come to this 
corner, he was observed, in the course of a few moments, to become much 
disconcerted and distressed. In truth, discovering the liquid with which he 
was filling the vase to be of a jet black color, he thought the secretion in- 
dicated the sudden attack of some mortal disorder. In great confusion and 
anguish of mind he returned to his seat and attempted to resume the trial of 
the cause, but finding his hand to shake so much that he could not write, he 
said that on account of indisposition he was obliged to adjourn the Court. 
As he was led to his carriage by his servants, the luckless student came up 
and said to him, " My Lord, I hope your Lordship will excuse me, as I sus- 
pect that I am unfortunately the cause of your Lordship's apprehension." 
He then described what he had done, expressing deep contrition for his 
thoughtlessness and impertinence, and saying that he considered it his duty 
to relieve his Lordship's mind by this confession. Lord Kenyon . " Sir, you 
are a man of sense and a gentleman — dine with me on Sunday." 

Lord Ellenborough pursued the same practice. I myself have often heard 
his large seals dangling from his watch-chain rattle against the vase, as he 
took it in his hand coram populo, decorously turning his back upon them. 



94 



REIGN OF GEORGE III. 



old, 'Whose ox have I taken? Whose ass have I taken? 

Whom have I defrauded?'" In consequence of this 

warm attachment, George III. had a high opinion of 

Lord Kenyon, notwithstanding the jokes about his bad 

Latin and his bad temper, and the subject of Catholic 

Emancipation arising, addressed to him the following 

letter: — 

" Queen's House, March 7, /7515. 

" The question that has been so improperly patronized 
by the Lord Lieutenant of Ireland seems to me to mili- 
tate against the Coronation Oath and many existing 
statutes. I have therefore stated the accompanying 
queries on paper, to which I desire that Lord Kenyon 
will, after due consideration, state his opinion, and ac- 
quire the sentiments of the Attorney General on this 
most important subject." 

The following was the reply: — 

" Lord Kenyon received your Majesty's commands 
when he was in the country. He came immediately to 
town, and incloses what has occurred to him on the ques- 
tion. He has conferred with the Attorney General, and 
believes there is not any difference in opinion between 
them. They are neither of them apprized what was the 
extent of the alteration meditated to be made in Ire- 
land. 
" Your Majesty's most obliged and dutiful subject, 

" Kenyon." 

" So long as the King's supremacy, and the doctrine, 
discipline, and government of the Church of England 
are preserved as the National Church, and the provision 
for its ministers kept as an appropriated fund, it seems 
that any ease given to sectarists would not militate 
against the Coronation Oath or the act of Union. 
Though the Test Act appears to be a very wise law, 
and in point of sound policy not to be departed from, 
yet it seems that it might be repealed or altered with- 
out any breach of the Coronation Oath or Act of 
Union." 

Another interrogatory came from his Majesty to the 
Chief Justice : — 

"The King is much pleased with the diligence shown 
by the Lord Kenyon in answering the question proposed 



LORD KENYON. 95 

to him, and wishes his further opinion on the state of 
the question in Ireland, as drawn up by a Right Rev- 
erend Prelate of that kingdom, and on the Petition of 
the Roman Catholics." 

The response was rather oracular: — 

" The petition expresses apprehensions of ' proscrip- 
tion, persecution, and oppression.' All grounds of such 
apprehensions, if such there really are, may be safely 
removed, if the late benefits which the petition admits 
have not removed them, without endangering the Estab- 
lished Church, or violating the Coronation Oath." 

It was greatly to the credit of Lord Kenyon that he 
went so far in combating the mischievous notions that 
had been infused in the royal mind ; and if the opinion 
then expressed had been acted upon at the time of the 
Irish Union, it would have saved a world of woe to the 
empire. 

Lord Kenyon, like all the other judges of his day, 
highly approved of the severity of the penal code, and 
would have thought the safety of the state endangered 
by taking away the capital sentence from forgery, or 
from stealing to the amount of five shillings in a shop, 
yet he was not such a " hanging judge " as some of his 
colleagues." A barrister once related the following anec- 
dote in a debate in the House of Commons : — 

" On the Home Circuit, a young woman was tried for 
stealing to the amount of forty shillings in a dwelling- 
house. It was her first offense, and was attended with 
many circumstances of extenuation. The prosecutor 
came forward, as he said, from a sense of duty ; the wit- 
nesses very reluctantly gave their evidence ; and the 
jury still more reluctantly their verdict ol guilty. The 
judge passed sentence of death. The unhappy prisoner 
instantly fell lifeless at the bar. Lord Kenyon, whose 
sensibility was not impaired by the sad duties of his 
office, cried out in great agitation, from the bench, ' I 
don't mean to hang you ! will nobody tell her I don't 
mean to hang her?' I then felt, as I now feel, that this 
was passing sentence, not on tlae prisoner, but on the 
law." 

Lord Kenyon very seldom wrote his judgments. In 

' -Edward Morris, Esq., afterwaris a Master in Chancery. 



96 REIGN OF GEORGE III 

delivering them his lafnguage was sometimes forcible, 
but arranged without the slighest regard to the rules of 
composition. In spite of the softening efforts of his re- 
porters in harmonizing his mixed metaphors, we have 
specimens of his style preserving a great share of its 
raciness. Thus he fortifies one of his favorite maxims, 
which Lord Eldon says was constantly in his mouth : 
Amo stare supra antiquas vias^ — "If an individual can 
break down any of these safeguards which the constitu- 
tion has so wisely and so cautiously erected, hy poisoning 
the minds of the jury at a time when they are called 
upon to decide, he w'^stab the administration of justice 
in its most vital parts." But some of the stories circu- 
lated respecting his historical allusions and quotations 
must have been exaggerations or pure inventions. Thus 
Coleridge, in his Table Talk, relates that Lord Kenyon, 
in addressing the jury in a blasphemy case, aftcir point- 
ing out several early Christians who had adorned the 
Gospel, added: "Above all, gentlemen, need I name to 
you the Emperor Julian, who was so celebrated for the 
practice of every Christian virtue that he was called 
Julian THE Apostle?" So in the collection of legal 
anecdotes, entitled Westminster Hall, the noble and 
learned lord is represented as concluding an elaborate 
address, on dismissing a grand jury, with the following 
valediction : " Having thus discharged your conscience, 
gentlemen, you may retire to your homes in peace, with 
the delightful consciousness of having performed your 
duties well, and may lay your heads upon your pillows, 
saying to yourselves 'Aut Caesar aut nullus.' " In ex- 
posing the falsehood of a witness, he is supposed to have 
said, " The allegation is as far from truth ' as old Boot- 
erium from the Northern Main' — a line I have heard or 
met with God knows wheer " (his mode of pronouncing 
where')' 

Before parting with Lord Kenyon's public character, 
I ought to mention that although he never returned to 
poetry after his early flight during his apprenticeship,- 
he left reports of cases begun by him while a student, 
and these being edited and published by his r-elation, 
Mr. Job Hammer, inscribe his name in the list of " noble 
' Twiss's Life of ^^ord Eldon. » Townsend, vol. i. p. 21. 



LORD KEN YON. 



97 



and royal authors," but I cannot say that they were of 
much value to the profession, or that they confer great 
glory upon his order. 

I have enlivened former Lives of Chancellors and 
Chief Justices by their faceticB — but I know nothing of 
this sort, either by books or tradition, attributed to Lord 
Kenyon, except his address to Mr. Abbott (afterwards 
Speaker and Lord Colchester). This pompous little 
man, while holding under him the office of Clerk of the 
Rules, was proceeding, as chairman of a committee of 
the House of Commons, to examine him very minutely 
upon the delicate subject of the perquisites of the Chief 
Justice. The offended Judge having demurred to an- 
swer any further, and being reminded in a solemn man- 
ner of the authority of the House of Commons, at last 
broke out, " Sir, tell the House of Commons that I will 
not be yelped at by my own turnspit." Of his other 
recorded sayings I can find nothing more pointed than 
that in complimenting Sergeant Shepherd, he said, "He 
has no rubbish in his head" — that a flippant observation 
being made by a witness respecting a letter supposed to 
come from a young lady, he said, " Turn the minion out 
of court" — and that when he detected the trick of an at- 
torney to delay a trial, he said, "This is the last hair in 
the tail of procrastination, and it must be plucked out." 

When not engaged in his judicial duties, Lord Ken- 
yon led the life of a recluse. He occupied a large, 
gloomy house in Lincoln's Inn Fields, in which I have 
seen merry doings when it was afterwards transferred to 
the Verulam Club. I have often heard this traditional 
description of the mansion in his time — " All the year 
through, it is Lent in the kitchen, and PASSION Week 
in the parlor." Some one having mentioned, that al- 
though the fire was very dull in the kitchen grate, the 
spits were always bright — " It is quite irrelevant," said 
Jekyll, "to talk about the spits, for «o^/^?«^ TURNS upon 
them." Although there was probably a good deal of ex- 
aggeration in these jests, there can be no doubt that 
Lord Kenyon deserved censure for the meanness of his 
mode of living, and his disregard of decent hospitality. 
The State conferred the emoluments of Chief Justice 
upon him as a trustee so far as that he should support 
IV.— 7 



98 REIGN OF GEORGE III. 

the dignfty of his station — that he should bring together 
at his board the deserving members of the important 
profession over which he was appointed to preside — and 
that he should represent the country to illustrious for- 
eigners who came to study our judicial institutions. 
Lord Kenyon's dinner-parties consisted of himself, Lady 
Kenyon, his children, and now and then an old attorney; 
and the very moderate weekly bills for such a manage 
being paid (which they were most punctually), the accu- 
mulations were v'ested in the three per cents, till they 
were sufficient to buy another Welsh farm. Lord Ken- 
yon's hours would not well have suited fashionable com- 
pany ; for, rising at six in the morning, he and all his 
household were in bed by ten at night. He is said to 
have built a comfortable house at Gredington, to which 
he retired in the long vacation. Under the name of 
villa, he had a miserable tumble-down farm-house at the 
Marsh Gate, about half a mile on this side of Richmond, 
which is still pointed out as a proof of his economy. 
The walls are moldering, and by way of an ornamental 
piece of water may be seen near the door a muddy duck- 
pond. In Lord Kenyon's time it was guarded by a 
half-starved Welsh terrier, which was elevated into a 
higher order of the canine race when the following lines 
were applied to the establishment ; — 

" Benighted wanderers the forest o'er 
Cursed the saved candle and unopened door ; 
While the gaunt mastiff growling at the gate 
Affrights the beggar whom he longs to eat." 

To this place the family came regularly on Saturday 
evenings, after a slight repast in town, bringing with 
them a shoulder and sometimes a leg of mutton, which 
served them for their Sunday dinner. On Monday 
morning the Chief Justice was up with the lark, and back 
in Lincoln's Inn Fields before the lazy Londoners were 
stirring. We have the following amusing account of 
one of these journeys from a barrister who was patronized 
by him ; — 

" An old coach came rumbling along and overtook 
me on the road to London from Richmond. It was 
one of those vehicles that reminded me of a Duke or 
Marquis under the old r6gime of France, rivaling in 



LORD KEN YON. 99 

indigence and want the faded finery of his wardrobe. 
Its coronet was scarcely discoverable, and its gildings 
were mouldy ; yet it seemed tenacious of what little 
remained of its dignity, and unwilling to subside into a 
mere hackney coach. I believe I might have looked 
rather wistfully at it (I was then a poor barrister, briefless 
and speechless, in the back rows of the court), when I 
perceived a head with a red nightcap suddenly pop out 
from the window, and heard myself addressed by name, 
with the offer of a cast to London. It was Lord Kenyon. 
He made the journey quite delightful by charming anec- 
dotes of the bar in his own time — of Jack Lee, Wallace, 
Bower, Mingay, Howorth, the last of whom was drowned, 
he said, on a Sunday water-excursion in the Thames. 
The good old man was evidently affected by the regrets 
which his name awakened, and they seemed the more 
poignant because his friend was called to his account in 
an act of profanation. ' But it was the sin of a good 
man,' he observed, ' and Sunday was the only day a 
lawyer in full business could spare for his recreation.' '" 

The red nightcap had been worn to save his wig. He 
was curiously economical about the adornment of his 
head. It was observed for a number of years before he 
died, that he had two hats and two wigs— ^of the hats and 
the wigs one was dreadfully old and shabby, the other 
comparatively spruce. He always carried into Court 
with him the very old hat and the comparatively spruce 
wig, or the very old wig and the comparatively spruce 
hat. On the days of the very old hat and the com- 
paratively spruce wig he shoved his hat under the bench, 
and displayed his wig ; but on the days of the very old 
wig and the comparatively spruce hat, he always continued 
covered. I have a very lively recollection of having often 
seen him sitting with his hat over his wig ; but I was not 
then aware of the Rule of Court by which he was governed 
on this point.' 

The rest of Lord Kenyon's apparel was in perfect keep- 

' Clubs of London. 

» Till the middle of the last century the Chaneellor is always represented 
with his hat on. In early times it was round and conical ; and such was 
Lord Keeper Williams's, although he was a bishop. In Anne's reign 
three-cornered hats came up. The black cap of the common law judges, 



loo REIGN OF GEORGE III. 

ing with his coiffure. " On entering Guildhall," says 
Espinasse, " Pope's lines in the Dunciad came across 
me, and I quoted them involuntarily : — 

' Known by the band and suit which Settle wore, 
His only suit for twice three years and more.' 

" Erskine would declare that he remembered the great- 
coat at least a dozen years, and Erskine did not ex- 
aggerate the claims of the coat to antiquity. When I 
last saw the learned Lord, he had been Chief Justice for 
nearly fourteen years ; and his coat seemed coeval with 
his appointment to the office. It must have been 
originally black, but time had mellowed it down to the 
appearance of a sober green, which was what Erskine 
meant by his allusion to its color. I have seen him sit 
at Guildhall in the month of July in a pair of black 
leather breeches ; and the exhibition of shoes frequently 
soled afforded equal proof of the attention which he paid 
to economy in every article of his dress." 

In winter he seems to have indulged in warmer gar- 
ments ; for James Smith, author of the " Rejected Ad- 
dresses," describing him in Michaelmas term, says : 
" But we should not have his dress complete were we to 
omit the black velvet smalls worn for many years, and 
threadbare by constant friction, which he used to rub 
with most painful assiduity when catechizing the wit- 
nesses. The pocket-handkerchief found in the second- 
hand silk waistcoat which he bought from Lord 
Stormont's valet being worn out, he would not go to the 
expense of another, and, using his fingers instead, he 
wiped them upon his middle garment, whether of leather 
or of velvet." 

According to other accounts this change in his habits 
did not begin till the imposition of the Income Tax by 
Mr. Pitt. Said Rogers the poet, " Lord Ellenborough 
had infinite wit. When the Income Tax was imposed, 
he stated that Lord Kenyon (who was not very nice in 
his habits) intended, in consequence of it, to lay down 
his pocket-handkerchief." ' 

which has remained unchanged for many ages, is square. With this they 
used always to be covered; but they wear it now only when passing sentence 

' Table Table of Samuel Rogers, p. 196. 



LORD KENYON. io\- 

If we can believe his immediate successor, who had a 
fair character for veracity, Lord Kenyon studied economy 
even in the hatchment put up over his house in Lincoln's 
Inn Fields after his death. The motto was certainly 
found to be " MORS JANUA VITA " — this being at first 
supposed to be the mistake of the painter. But when it 
was mentioned to Lord Ellenborough, " Mistake ! " ex- 
claimed his Lordship, " it is no mistake. The considerate 
testator left particular directions in his will that the 
estate should not be burdened with the expense of a 
dipt hong! " 

Accordingly he had the glory of dying very rich. 
After the loss of his eldest son, he said with great emo- 
tion to Mr. Justice Allan Park, who repeated the words 
soon after to me — " How delighted George would be to 
take his poor brother from the earth, and restore him to 
life, although he receives ;^25o,ooo by his decease !" 

He was succeeded by his son George, a most warm- 
hearted, excellent man — to whom it may be easily for- 
given that he considers the founder of his house a model 
of perfection, not only in law, religion, and morals, but 
in manners, habits, and accomplishments. To spare the 
feelings of one so pious, I resolve that this Memoir shall 
not be published in his lifetime, although I believe that 
it is chargeable with a desire to extenuate rather than 
to set down aught in malice} 

I cannot say with a good conscience that the first 
Lord Kenyon was highly educated and every way quali- 
fied to fill the office of Chief Justice: but he was 
earnestly desirous to do what was right in it ; and he 
possessed virtues which not only must endear him to 
his own descendants, but make his memory be respected 
by his country. 

' This Memoir was written in tlie lifatime of George, the secom ' Lord 
Kenyon, with whom I was in habits of familiar intercourse. H • died 
I Feb. 1855, and was succeeded by his eldest son Lloyd, the third Lf>td, 
who I have heard does credit to the name he bears, but with ■« K»jn I 
have not the honor of any acquaintance. 



CHAPTER XLVI. 

LIFE OF LORD ELLENBOROUGH FROM HIS BIRTH TILL 
HIS MARRIAGE.' 



I NOW come to a Chief Justice with whom I have 
had many a personal conflict, and from whom for 
several years I experienced very rough treatment, 
but for whose memory I entertain the highest respect. 
He was a man of gigantic intellect ; he had the advan- 
tage of the very best education which England could 
bestow ; he was not only a consummate master of his 
own profession, but well initiated in mathematical sci- 
ence and one of the best classical scholars of his day ; 
he had great faults, but they were consistent with the 
qualities essentially required to enable him to fill his 
high office with applause. ELLENBOROUGH was a real 
CHIEF — such as the rising generation of lawyers may 
read of and figure to themselves in imagination, but 
may never behold to dread or to admire. 

When I first entered Westminster Hall in my wig and 
gown, I there found him " the monarch of all he sur- 
veyed," and, at this distance of time, I can hardly recol- 
lect without awe his appearance and his manner as he 
ruled over his submissive subjects. But I must now trace 
his progress till he reached this elevation. 

His lot by birth was highly favorable to his gaining 
distinction in the world — affording him the best facilities 
and the strongest incentives for exertion. He was the 
younger son of an English prelate of very great learning 
and very little wealth. His ancestors had long been 
" statesmen" in the county of Westmoreland — that is, 
substantial yeomen cultivating a farm which was their 
own property, and which was transmitted without ad- 

' When I wrote this Memoir I was still Chancellor of the Duchy of 
Lancaster, and a member of Lord John Russell's Cabinet. 



I750-J LORD BLLENBOROUGH. 103 

dition or diminution for many generations. At last one 
of them was admitted to holy orders without having 
been at any university, and acted as the curate of the 
mountainous parish in which his patrimony lay. His son 
was the famous Dr. Edmund Law, Bishop of Carlisle, 
who having been sent early to St. John's College, Cam- 
bridge, highly distinguished himself there, was elected 
a fellow of Christ's College, and became one of the shin- 
ing lights of that society celebrated under the name of 
the Zodiac. Before being raised to the episcopal bench, 
he was successively rector of Graystock and of Salkeld, 
Master of Peterhouse, and a Prebendary of Durham. 
In politics, like many dignitaries of that day, he was a 
good Whig, although almost all the inferior clergy were 
Tories, or rather Jacobites. In religion he strongly in- 
clined to the low Church party, and was suspected of 
being somewhat latitudinarian in some of the articles 
of his faith. He published various theological works, 
the most famous of which was a treatise " on the Inter- 
mediate State" — inculcating the doctrine that the soul 
cannot be in active existence when separated from the 
body, and that it is therefore in a continuous sleep be- 
tween death and the general resurrection.' He was mar- 
ried to Mary, daughter of John Christian, Esq., of Une- 
rigg, in Cumberland, and by her had a family of twelve 
children, among whom were two Bishops and a Chief 
Justice. 

Edward, the subject of this memoir, was one of the 
youngest of them, and was born in the parsonage of 
Salkeld on the i6th of November, 1750. Resembling 
his mother in features, he is said to have derived from 
her likewise his manners and the characteristic qualities 
of his mind. If the following description of the good 
Bishop be correct, they could not have descended upon 
the sarcastic Chief Justice ex parte paternd : — 

" His Lordship was a man of great softness of man- 

' It is stated by Townsend (vol. i. 301) and other biographers, that he 
was likewise author of " A Serious Call to the Unconverted," but this 
very lively work, which Should rather be designated " True Religion 
made entertaining," was written by WILLIAM Law, born in Northamp- 
tonshire, and educated at Oxford, who was tutor to the father of Gibbon 
the historian, and ended his career by becommg a disciple of Jacob 
Behmen. — GMan's Miscellaneous Works ; Boswell's Life of Johnson. 



I04 REIGN OF GEORGE III. [lySC"— 

ners, and of the mildest and most tranquil disposition. 
His voice was never raised above its ordinary pitch. His 
countenance seemed never to have been ruffled ; it in- 
variably preserved the same kind and composed aspect, 
truly indicating the calmness and benignity of his 
temper. His fault was too a great degree of inaction 
and facility in his public station. The bashfulness of 
his nature, with an extreme unwillingness to give pain, 
rendered him sometimes less firm and efficient in the 
administration of authority that was requisite.'" 

Yet our hero's "Christian " blood will not account for 
his irascibility, as he himself used to declare that in 
temper his mother was as admirable as the Bishop his 
father, and when he had reached old age, he often ex- 
pressed a fond respect for her memory. 

Little Ned, although often naughty, was the chief 
favorite of both his parents. He remained at home till 
he was eight years old, and not only his nurse but the 
whole family spoke their native dialect in . such force, 
that he retained the Cumbrian pronounciation and ac- 
cent to his dying hour." Soon after he had been taught 
to read, he was sent into Norfolk to live with his ma- 
ternal uncle, the Rev. Humphrey Christian, a clergyman 
settled at Docking, in that county. Having been a short 
time at a school of some repute at Bury St. Edmunds, 
he was removed to the noble foundation of the Charter- 
house in London." To this solid acquisitions there he 
ever gratefully ascribed his subsequent eminence in 
public life, and there, by the special directions of his 
will, his remains now repose near to those of the 
founder. 

Law continued at the Charter-house six years, and 
rose to be Captain of the school. He used to say that 
while enjoying this dignity he felt himself a much more 
important character than when he rose to be Chief 
Justice of England and a Cabinet Minister. At this 
early period he displayed the same vigor of character 

' Archdeacon Paley. 

» FoL example, he called the days of the week " Soonda, Moonda, Tooze- 
da, Wenzeda," &c. 

" He was admitted a Scholar on the 22d of January, 1761, upon the 
nomination of the Bishop of London (Dr. Sherlock), and elected an Ex- 
hibitioner 2d May, 1767. 



1768 I LORD ELLENBOROUGH. 



105 



and the same mixture of arrogance and bonhomie which 
afterwards distinguished him. He was described by a 
classfellow who had alternately experienced harshness 
and kindness from him, as " a bluff, burly boy, at once 
moody and good-natured — ever ready to inflict a blow 
or perform an exercise for his schoolfellows.'" 

When he had reached the age of eighteen he was sent 
to Cambridge and entered at Peterhouse, of which his 
father was still master. He is said now to have occa- 
sionally indulged pretty freely in the dissipation which 
was then considered compatible with a vigorous applica- 
tion to study, but he never wasted his time in idle 
amusements ; over his wine he would discuss the merits 
of a classical author, or the mode of working a mathe- 
matical problem ; and when his head was cleared by a 
cup of strong tea he set doggedly to work that he might 
outstrip those who confined themselves to this thin po- 
tation. 

He belonged to a club of -lyhich William Coxe, then 
an under-graduate, afterwards an archdeacon, was the 
historiographer. The destined eulogist of Sir Robert 
Walpole, thus, in flattering terms, described the future 
Chief Justice: — 

" Philotes bears the first rank in this our society. Of 
a warm and generous disposition, he breathes all the ani- 
mation of youth and the spirit of freedom. His thoughts 
and conceptions are uncommonly great and striking; his 
language and expressions are strong and nervous, and 
partake of the color of his sentiments. As all his views 
are honest, and his intentions direct, he scorns to dis- 
guise his feelings or palliate his sentiments. This dispo- 
sition has been productive of uneasiness to himself and 
to his friends, for his open and unsuspecting temper 
leads him to use a warmth of expression which some- 
times assumes the appearance of fiertd. This has fre- 
quently disgusted his acquaintance ; but his friends know 
the goodness of his heart, and pardon a foible that arises 
from the candor and openness of his temper. Indeed, 
he never fails, when the heat of conversation is over, 
and when his mind becomes cool and dispassionate, to 
acknowledge the error of his nature, and, like a Roman 
' CapelLofft. 



to6 REIGN OF GEORGE III. [1771 

Catholic, claim an absolution for past as well as future 
transgressions. Active and enterprising, he pursues with 
eagerness whatever strikes him most forcibly. His studies 
resemble the warmth of his disposition ; struck with the 
great and sublime, his taste, though elegant and re 
fined, prefers the glowing and animated conceptic.s 
of a Tacitus to the soft and more delicate graces of a 
Tully." 

I am afraid we must infer that, in conversation, he was 
rather overbearing, and that the love of sarcasm, which 
never left him, was then uncontrolled and made him 
generally unpopular. However, his straightforward; 
manly character, joined to his brilliant talents, procured 
him, while at the University, friends as well as admirers : 
among whom are to be reckoned Vicary Gibbs, Simon 
Le Blanc, and Souldan Lawrence, afterwards his rivals 
at the bar and associates on the bench. While an under- 
graduate, by exercising the invaluable virtue of self-de- 
;iial, he was upon the whole very industrious, although 
he loved society, and said " the greatest struggle he 
ever made was in leaving a pleasant party and retiring 
to his room to read." 

When the time approached for taking his bachelor's 
degree, it was confidently expected that he would be 
senior wrangler and first medalist. His elder brother, 
afterwards Bishop of Elphin, to whom he was considered 
much superior, had been second wrangler in a good 
year. Edward, however, was decidedly surpassed in the 
mathematical examination by two men much inferior to 
him in intellect, but of more steady application. His dis- 
appointment was imputed to excess of confidence. He 
himself took it deeply to heart, and he pretended to be 
as much ashamed of being third wrangler as if he had 
got the " wooden spoon." His classical acquirements did 
carry off the first medal ; but his pride was by no means 
assuaged, and he continued for the rest of his days to 
scoff at academical honors. This feeling was embittered 
by his writing, the two following years, for bachelor's 
prizes, and gaining nothing beyond fifteen guineas, given 
by the members for the second-best Latin Essay. Al- 
though his spoken eloquence was vigorous and impres- 
sive, he never could produce anything very striking when 



1773-J LORD ELLENBOROUGH. roy 

silting down, unexcited, at his desk, and his written com- 
positions, whether in Latin or English, were never 
remarkable either for lucid arrangement or purity of 
style. 

He continued to reside at Cambridge two years after 
taking his bachelor's degree, with a view to a fellowship ; 
and these he used to describe as the least agreeable and 
least profitable of his life. He still had fits of applica- 
tion to severe study, but the greatest part of his time 
he now devoted to light literature, taking special pleas- 
ure in novels. He said he abominated such as ended un- 
happily, but he read all indiscriminately, and while he 
luxuriated in Fielding and Smollett, Mrs. Sheridan's 
Sidney Biddulph was said to have drawn " iron tears down 
Pluto's cheek." 

His father had much wished to have all his sons in the 
church, but Edward was earnestly bent upon trying his 
fortune at the bar, and had obtained leave to enter him- 
self of Lincoln's Inn," on the express condition that he 
was not to begin the study of the law till he had ob- 
tained a fellowship, and that, failing this, he should still 
take holy orders — so that he might have something to 
depend upon for a subsistence beyond the precarious 
hope of fees. Meeting with some disappointments in 
academical promotion, he was strenuously urged to enter 
the Church, his father having become'a bishop, with the 
power of giving him a living among the fells of West- 
moreland ; but at last he was elected a fellow of Trinity 
College, and the Chief Justiceship was open to him. 

It was a fortunate circumstance for him that he em- 
braced the profession of the law against the earnest 
wishes of a father whom he sincerely respected and 
loved. He thus undertook a tremendous responsibility 
upon himself, and had the most powerful motives fot 

' 'LINCOLN'S INN. 

" Edward Law, Gentleman of S' Peter's College, Cambridge, 
third son of the Right ReV* Father in God, Edmond Lord Bishop of 
Carlisle, is admitted into the Society of this Inn the lo* day of June, 
in the Ninth year of the Reign of our Sovereign Lord George the Third, 
bv the Grace of God, of Great Britain, France, and Ireland, King, De- 
fender of the Faith, and in the year of our Lord 1769, and hath there- 
upon paid to the use of this Society the sum of Three pounds three shil- 
lings and four pence. Admitted by R°. Spoonbs." 



io8 REIGN OF GEORGE III. \^.^^^. 

exertion, that he might justify his own opinion and 
soothe the feelings of him whose latter days he hoped to 
see tranquil and happy. He spurned the idea of retreat- 
ing upon the Church after a repulse by the Law, and he 
started with the dogged resolution to overcome every 
difficulty which he might encounter in his progress. 
Having obtained a small set of chambers in Lincoln's 
Inn, he forthwith in good earnest began the study of 
jurisprudence, not contenting himself with the lucid 
page of Blackstone and the elegant judgments of Mans- 
field, but vigorously submitting to whatever was most 
wearisome and most revolting if considered necessary to 
qualify him for practice at the English bar. Determined 
to be a good artificer, he did not dread " the smoke and 
tarnish of the furnace." 

" Moots" and "Readings" having long fallen into dis- 
use, the substituted system ol pupilizing had been firmly 
established — well adapted to gain a knowledge of prac- 
tice, but not of principles. A student intended for the 
common law courts was expected to work at least two 
years in the office of a special pleader, copying pre- 
cedents, drawing declarations and pleas, and having an 
opportunity of seeing the run of his master's business. 
The most distinguished instructor in this line at that 
time was George'Wood, on whom Lord Mansfield made 
the celebrated special-pleading joke about his horse 
demurring when he should have gone to the country.^ In 
his office. Law, by great interest, obtained a desk, and 
be could soon recite the " money counts " as readily as 
his favorite poem of ABSALOM AND AcHITOPHEL. We 
may form a lively notion of his habits and his sentiments 
at this period from the following letter which, at the 
conclusion of a sitting of many hours in Mr. Wood's 

' George, though a subtle pleader, was very ignorant of horse flesh, and 
had been cruelly cheated In the purchase of a horse on which he had in- 
tended to ride the circuit. He brought an action on the warranty that the 
horse was " a good roadster, and free from vice." At the trial before Lord 
Mansfield, it appeared that when the plaintiff mounted at the stables in 
London, with the intention of proceeding to Barnet, nothing could induce 
the animal to move forward a single step. On hearing this evidence, the 
Chief Justice with much gravity exclaimed, " Who would have supposed 
that Mr. Wood's horse would have demurred when he ought to have gone to 
the country ? " Any attempt to explain this excellent joke to lay gents 
would be vain, and to lawyers would be superfluous. 



I773-J LORD ELLENBOROUGH. 109 

chambers, we wrote to his friend Coxe, then a private 
tutor to a young nobleman : — 

"June 1 8th, 1773 — Temple, Friday night. 

" After holding a pen most of the day in the service of 
my profession, I will use it a few minutes longer in that 
of friendship. I thank you, my dearest friend, for this 
and every proof of confidence and affection. Let us 
cheerfully push our way in our different lines : the path 
of neither of us is strewed with roses, but they will 
terminate in happiness and honor. I cannot, however, 
now and then help sighing when I think how inglorious 
an apprenticeship we both of us serve to ambition — 
while you teach a child his rudiments and I drudge at 
the pen for attorneys. But if knowledge and a re- 
spectable situation are to be purchased only on these 
terms, I, for my part, can readily say ' hac mercede 
placet.' Do not commend my industry too soon ; ap- 
plication wears for me at present the charm of novelty ; 
upon a longer acquaintance I may grow tired of it." 

On the contrary, he became fonder and fonder of it. 
The tautological jargon still used in English law pro- 
ceedings is disgusting enough, but in the exquisite logic 
of special pleading rightly understood, there is much to 
gratify an acute and vigorous understanding. The 
methods by which it separates the law from the facts, 
and having ascertained the real question in controversy 
between the parties, refers the decision of it either to the 
judges or to the jury, favorably distinguish our procedure 
from that of any other civilized nation, and have enabled 
us to boast of a highly satisfactory administration of 
justice without a scientific legal code. 

Law continued working very hard as a special-pleading 
pupil for two years. During this period he not only 
grew to be a great favorite with his instructor, but the 
attorneys who frequented Mr. Wood's chambers became 
acquainted with his assiduity and skill. The pleadings 
settled by Mr. Wood and the opinions signed by him 
were generally written in a very large, bold, pot-hook 
hand, which they discovered to be Mr. Law's, and al- 
though he was much too independent and honorable to 
resort to any evil arts for the purpose of ingratiating 
himself, and he was chargeable rather with hauteur than 



no REIGN OF GEORGE III. [1775. 

with huggery, he sometimes got into conversation with 
the attorneys, and he raised in their minds a very high 
opinion of his proficiency as well as of his industry. 

When he was to cease to be in statu pupillari the ques- 
tion arose whether he should immediately he called to 
the bar, or follow the course recently introduced of 
practicing as a special pleader under the bar — confining 
himself entirely to chamber practice — drawing law papers 
and giving opinions to the attorneys in cases of smaller 
consequence — making his own charges for his work, in- 
stead of receiving the spontaneous quiddam honorarium, 
which to a barrister must not be below a well-known 
minimum, but, being above that, he is not at liberty 
to complain of, however inadequate it may appear. Law 
was conscious of considerable powers of elocution which 
he was impatient to display. He not only belonged to 
a private debating club for students in the Temple, but 
he had gained applause by an oration at Coachmakers' 
Hall, then open to spouters in every rank of life. Never- 
theless, sacrificing the chance of present ^clat, he pru- 
dently resolved to condemii himself to a period of useful 
obscurity, and he commenced " special pleader under 
the bar." He had great success, and business flowed in 
upon him, particularly from the agents of the Northern 
attorneys. His charge for answering cases was very 
small, but he put a modest estimate upon the real value 
of the commodity which he sold. Many years afterwards, 
when he was presiding at Nisi Prius, a wrong-headed 
attorney pleading his own cause, and being overruled on 
some untenable points which he took, at last imperti- 
nently observed—" My Lord, my Lord, although your 
Lordship is so great a man now, I remember the time 
when I could have got your opinion for five shillings." 
Ellenborough, C. J.: " Sir. I daresay it was not worth 
the money !" This was a far better mode of vindicating 
the dignity of the Judge and carrying along with him 
the sympathies of the audience, than fining the delin- 
quent or threatening to commit him for a contempt of 
court — the course which would probably have been fol- 
lowed by the hasty Kenyon. 

Under the bar Law soon made a handsome income ; 
Cambridge men studying for the legal profession were 



1780.] LORD ELLENBOROUGH. m 

eager to become his pupils at the established fee of one 
hundred guineas a year or two hundred guineas for three 
years ; and when he made out his bills at Christmas he 
found that he was doing better than any barrister who 
could be considered his contemporary — with the single 
exception of Erskine. 

During five long and irksome years did Law continue 
to devote himself to this drudgery ; but his persever- 
ance was amply rewarded, for he not only gained a 
reputation which was sure to start him with full busi- 
ness at the bar, but he acquired a thorough knowledge 
of his craft, which few possess who, after a mere course 
of solitary study, plunge into forensic wrangling. 

In Hilary Term, 1780, he was called to the bar by the 
Honorable Society of Lincoln's Inn. Generally speak- 
ing, success cannot be anticipated with any confidence 
for a young barrister, however well qualified to succeed 
he may appear to be ; and our profession well illustrates 
the Scriptural saying, " The race is not always to the 
swift, nor the battle to the strong, nor bread to men of 
understanding, nor honor to the men of skill, but time 
and chance happeneth to them all." Nevertheless Law 
neither felt, nor had reason to feel, the slightest mis- 
givings when he put on his gown, and started for the 
prize of Chief Justice. Lord Camden and other great 
lawyers had languished for many years without any op- 
portunity of displaying their acquirements. Law had 
several retainers given to him by great Northern attor- 
neys on the very day of his call ; and not only from 
family connection, but from his reputation as a special 
pleader, which had long crossed the Trent, he was sure 
of finding himself at once in respectable practice. He 
disdained the notion of attending Quarter Sessions, and 
he always was inclined to sneer at young gentlemen who 
tried to force themselves into notice by writing a law 
book. He calculated that by his knowledge and his 
eloquence he must speedily be at the head at the 
Northern Circuit. In general those who practice under 
the bar as special pleaders do not aspire higher than 
holding second briefs in a stuff gown, with an arrtlre 
pensde of being raised to be a puisne judge. The ardor 
of our debutant had not been extinguished or chviler' oy 



II? REIGN OF GEORGE III. [1780. 

his long apprenticeship, and he already heard the rustling 
of his silk gown, and imagined himself wearing the 
collar of SS, appropriated to the Chief Justice of Eng- 
land. 

In the beginning of March, 1780, he joined the Cir- 
cuit at York, causing considerable alarm to those estab- 
lished in business, and curiosity among the disinterested. 
Without any suspicion of improper arts being used by 
himself, or of improper influence being used in his favor 
by others, at the opening of the Nisi Prius Court a large 
pile of briefs lay before him. His manner was somewhat 
rough, and he was apt to get into altercations with his 
opponents and with the judge ; but his strong manly 
sense, and his familiar knowledge of his profession, in- 
spired confidence into those who employed him ; and 
the mingled powers of humor and of sarcasm which he 
displayed soon gave him a distinguished position in the 
Circuit Grand Court held foribus clausis among the bar- 
risters themselves, in which toasts were given, speeches 
were made, and verses were recited, not altogether fit 
for the vulgar ear. 

At this period there was never more than two or three 
King's counsel on any circuit ; and a silk gown was a 
distinction to the wearer, not only among his brethren, 
but in general society — placing him above the gentry 
of the country. The Northern leaders then were Wal- 
lace and Lee, whom no atterney approached without 
being uncovered. They were men of great eminence 
from their personal qualifications, and it was expected 
that they would speedily fill the highest judicial offices. 
They were before long taken from the circuit, to the 
joy of their juniors — Wallace being made Attorney Gen- 
eral, and Lee Solicitor General ; but, unluckily for them, 
they adhered to Mr. Fox and Lord North, and the 
permanent ascendency of William Pitt, after he had 
crushed the coalition, was fatal to their further advance- 
ment. Neither of them having reached the Bench, their 
their traditionary fame, transmitted through several 
generations of lawyers, is now dying away.' 

' Wallace's son was made a peer, by the title of Lord Wallace, of Knares- 
dale, in Lp28, but he died without issue in 1844. Lee, though he filled a 
great spade m the public eye while living, has not in any way added to th« 
permanent '" Grandeur of the Law." 




1.0 KD ElJ.ENBoi;,,^.^,,^ 



1780.] LORD ELLENBOROUGH. 113 

Till the beginning of the 19th century the Northern 
Circuit, in the spring, was confined to Yorkshire and 
Lancashire. In early times the distance of the four 
hyperborean counties from the metropolis, and the bad- 
ness of the roads, rendered it impossible to hold assizes 
in any of them during the interval between Hilary and 
Easter Terms — so that a man committed for murder in 
Durham, Northumberland, Cumberland, or Westmore- 
land might lie in jail near a twelvemonth before he was 
brought to trial. At the accession of George III. there 
were turnpike trusts in the remotest parts of the king- 
dom, and post-horses were found wherever they were 
desired ; but the usual superstitious adherence to ancient 
customs when the reason for them has ceased, long 
obstructed every attempt to improve the administration 
of justice in England. 

The business being finished at York, Mr. Law pro- 
ceeded with his brethren to Lancaster, where the list of 
civil causes was still scanty, although all that arose 
within the County Palatine were to be tried here. Liver- 
pool, compared with what it has since become, might 
have been considered a fishing village ; Manchester had 
not reached a fourth of its present population ; and the 
sites of many towns, which now by their smoke darken 
the Lancastrian air for miles around, were then green 
fields, pastured by cattle, or heathery moors, valuable 
only for breeding grouse. Here our junior did not fare 
so well as at York ; yet he could not have been indicted 
at the Grand Court for carrying unam purpuream baggam 
fiaccescentem omnino inanitatis causd;^ for although 
Wallace, who was nearly connected with him by 
marriage, had made him a present of a bag — an honor of 
which no junior before could ever boast on his first circuit 
— its flaccidity was swelled out by several briefs, which 
he received from an attorney of Ashton-under-Lyne, 
who used afterwards boastingly to say, "/ made Law 
Chief Justice." ' 

' These mock indictmenU were still often in Latin, notwithstanding the 
statute requiring all proceedings in Courts of Justice to be in the English 
tongue, it having been ruled that " no statute is binding on the Grand Court 
of the Northern Circuit in which this Court is not specially mentioned." 

^ Now-a-days any young barrister buys a bag, and carries it as soon after 
he is called to the bar as he likes ; but when I was called to the bar, and 
IV.— S 



IT4 REIGN OF GEORGE III. [1780 

The assizes being speedily over, Mr. Law returned to 
London well pleased with his success, and with his 
prospects. But in the two following terms he never 
opened his mouth in court unless to make a motion of 
course — and he was rather disheartened. It wasnot till 
years afterwards, when the attention of the nation was 
fixed upon him as counsel for Mr. Hastings, that his 
merits were appreciated by attorneys in London. 

When the summer assizes came round he visited all the 
six counties which form the Northern Circuit. In each 
of them he had a considerable portion of business — and 
at Carlisle more than any other junior, his own qualifi- 
cations as a lawyer being backed by the respect enter- 
tained for the venerable Bishop of the diocese. _ 

During seven years he continued to fight his way on 
the circuit in a stuff gown ; and towards the end of this 
period he had gained such reputation in addressing 
juries as nearly to throw out of business several black- 
letter special pleaders, who were his seniors, and could 
not be retained along with him when it was intended 
that he should lead the cause. There was, therefore, a 
general wish among his brother circuiteers that he should 
have silk, and a representation upon the subject was 
made to Lord Chancellor Thurlow ; but some difficulty 
arose about conferring this mark of royal favor upon one 
who was considered a decided Whig. Although measures 
to encourage free trade, for the improvement of the law, 
and even for a reform of Parliament, were brought for- 
ward by the prime minister, the memory of the 
" Coalition " was green, and the thirst for revenge upon 
all who had encouraged the attempt to put a force upon 
the Crown in the choice of ministers was still unsatiated. 
Thurlow, who soon after, during the King's insanity, 
intrigued with the Whigs that he himself might retain 

long after, the privilege of carrying a bag was strictly confined to those who 
had received one from a King's counsel. The King's counsel, then few in 
number, were considered officers of the Crown, and they not only had a 
salary of £iif3 a year, but an annual allowance of paper, pens, and purple 
bags. These they distributed among juniors who had made such progress 
as not to be able to carry their briefs conveniently in their hands. All these 
salaries and perquisites were ruthlessly swept away in 1830 by Lord Grey's 
reforming Government — and it was full time — as King's counsel had become 
a mere grade in the profession, comprehending a very large number of its 
members. 



LORD ELLENBOROUGH. 115 

the Great Seal under them, had down to this time 
testified peculiar enmity to the whole of them as a party 
and individually. However, the urgency for Law's pro- 
motion increasing, and the Judges who went the 
Northern Circuit joining in the application, it could no 
longer be refused. 

Before we behold him as a public character, let us 
take d glance at him in domestic life. It was said that 
he had rather freely indulged in the gallantries of youth, 
and that he even for a time followed the example of the 
then Lord Hjgh Chancellor of Great Britain, the great 
prop of the Church, and chief distributor of ecclesias- 
tical preferment, who openly kept a mistress.' But how- 
ever this may be, Law was not supposed to have ex- 
ceeded what was permitted by the license of those times, 
and he was happily forever rescued from the peril of 
scandal by being accidentally introduced to the beauti- 
ful Miss Towry, daughter of Mr. Towry, a commissioner 
of the navy, and a gentleman of good family. I myself 
recollect her become a mature matron, still a very fine 
woman, with regular features, and a roseate complexion ; 
but when she first appeared, she excited admiration al- 
most unprecedented. Amongst many others, Law came, 
saw, and was conquered. Considering his ungainly 
figure and awkward address, it seems wonderful that he 
should have aspired to her hand among a crowd of com- 
petitors — particularly as it was understood that she had 
already refused very tempting proposals. But he ever 
felt great confidence in himself, whatever he undertook; 
he now said, " Faint heart never won fair lady," and 
after he had paid her devoted attention for a few weeks, 
he asked her father's leave to address her. The worthy 
commissioner gave his consent, having heard that this 
suitor was considered the most rising lawyer in West- 
minster Hall. But the young lady being interrogated, 
answered by a decided negative. Still the lover was un- 
dismayed, even (as it is said) after a third rebuff. At 
last, by the charms of his conversation, and by the eu- 
logiums of all her relations, who thought she was repell- 

' Mrs. Harvey, celebrated in the " Roliiad," and said to have been much 
courted by the clergy. 



xi6 



REIGN OF GEORbE III. 



[1789. 



ing a desirable alliance, her aversion was softened, and 
she became tenderly attached to him. 

The marriage took place on the 17th day of October, 
1789, and proved most auspicious. Mrs. Law retained 
the beauty of Miss Towry ; and such admiration did it 
continue to excite, that she was not only followed at 
balls and assemblies, but strangers used to collect in 
Bloomsbury Square to gaze at her as she watered the 
flowers which stood in her balcony. But no jealousy 
was excited in the mind of the husband even when 
Princes of the blood fluttered round her. For many 
years the faithful couple lived together in uninterrupted 
affection and harmony, blessed with a numerous prog- 
eny, several of whom united their father's talents with 
their mother's comeliness. 




CHAPTER XLVII. 

CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH 
TILL HE WAS APPOINTED ATTORNEY GENERAL. 

LAW had long bitterly complained that his fame 
was confined to the limits of the Northern Circuit. 
He had scarcely as yet been employed in a single 
cause of interest in London, whereas Erskine was already 
the foremost man in the Court of King's Bench, and 
had special retainers all over England. Our aspirant 
believed that if he a fair opportunity of displaying his 
powers, he should gain high distinction ; but he dreaded 
that he might never lead in actions of greater interest 
than trespass for an assault, or assumpsit on the warranty 
of a horse, or covenant for the mismanagement of a farm, 
or case for the negligent working of a mine. 

In the midst of this despondency, he found at his 
chambers, one evening, a general retainer for Warren 
Hastings, Esq., and instructions to settle the answer 
to the articles of impeachment, with a fee of five hun- 
dred guineas. This was a much more important occur- 
rence to him than his appointment to be Chief Justice 
of England, which was the consequence of it, and fol- 
lowed in the natural and expected course of events. He 
at once perceived that his fortune was made ; and in 
rapid succession he saw, with his mind's eye, the plea- 
sure to be felt by his family, the mortification of his 
enemies, the glory that he was to acquire from entering 
the lists against such antagonists as Burke, Fox, and 
Sheridan, and the honors of his profession, which must, 
in due time, be showered upon him. In our judicial 
history no English advocate has ever had such a field 
for the display of eloquence as the counsel for the im- 
peached Warren Hastings. Hale could only advise 
Charles I to deny the jurisdiction of the High Court of 
Justice; Lane, in defending the Earl of Strafford, was 



ii8 REIGN OF GEORGE III. \^^^^ 

only permitted to touch upon a technicality; and, till 
the reign of William III., incases of high treason, it was 
only to argue a dry point of lawwhich might incidentally 
arise that the accused had any assistance from advocacy. 
Since the Revolution there had been very interesting 
state trials, but they only involved the fate of an in- 
dividual ; they exhibited the struggles of retained 
lawyers against retained lawyers ; they turned upon 
specific acts of criminal conduct imputed to the accused; 
they were over in a single day, and in nine days more 
they were forgotten. No one then anticipated that the 
impending trial of Warren Hastings was to be begun 
before one generation of peers and decided by another, 
but all knew that it involved the mode in which a distant 
empire had been governed ; that it was to unfold the 
history of some of the most memorable wars and revo- 
lutions in Asia ; that it was to elucidate the manners and 
customs of races of men who, though subjected to our 
dominion, we only imperfectly knew from vague rumor ; 
that, in the course qf it, appalling charges of tyranny 
and corruption were to be investigated ; that the accusers 
were the Commons of England ; that the managers of 
the impeachment were some of the greatest orators and 
statesmen England had ever produced, and that upon 
the result depended not only the existence of Mr. Pitt's 
administration, but what was more exciting, the fate of 
an individual whose actions had divided public opinion 
throughout the civilized world : who was considered by 
some a monster of oppression, cruelty, and avarice, and 
by others a hero, a philanthropist, and a patriot. The 
northern circuiteer, instead of addressing a jury of illit- 
erate farmers at Appleby, in a small court filled with 
rustics, was to plead in Westminster Hall, gorgeously 
fitted up for the occasion, before the assembled Peers, 
in their ermined robes, before the representatives of the 
people attending as parties, and before a body of list- 
eners comprehending all most distinguished for rank, 
for talent, and for beauty. 

Although Law had not thought of this retainer more 
than of being made Archbishop of Canterbury, some of 
his friends had been engaged in a negotiation for secur- 
ingr -"t for him. Hastings himself was naturally desirous 



1787.] LORD ELLENBOROUGH. 11, 

that he should be defended by Erskine, who had ac- 
quired so much renown as counsel for Lord George Gor- 
don, who had loudly declared his own personal convic- 
tion to be that the Ex-Governor General deserved well 
of his country. But as the impeachment had become a 
party question, and was warmly supported by the 
leaders of the party to whom Erskine belonged (al- 
though he was not then a member of the House of Com- 
mons), he reluctantly declined an engagement 'in which 
his heart would enthusiastically have prompted the dis- 
charge of his professional duties, and by which he might 
have acquired even a still greater name than he has left 
with posterity. He declared that he would not have 
been sorry to measure swords with Burke, who, in the 
House of Commons, had on several occasions attacked 
him rather sharply and successfully. " In Westminster 
Hall," said he, " I could have smote this antagonist hip 
and thigh." But Erskine could not for a moment en- 
dure the idea of coming into personal conflict with Fox 
and Sheridan, whom he lOved as friends, whom he 
dreaded as rivals, and with whom, on a change of govern- 
ment, he hoped to be associated in high office. 

The bar at this time afforded little other choice. 
Dunning had become a Peer and sunk into insignificance ; 
his contemporaries were either connected with Mr. Pitt's 
Government, or were declining from years and infirmity 
— and among the rising generation of lawyers, although 
there was some promise, no one yet had gained a 
position which seemed to fit him for this " great 
argument." 

The perplexity in which Hastings and his friends 
found themselves being mentioned in the presence of 
Sir Thomas Rumbold, who had been in office under him 
in India, he delicately suggested the name of his brother- 
in-law,' pointing out his kinsman's qualifications in 
respect of legal acquirements, of eloquence, and, above 
all, of intrepidity — on which, considering the character 
of the managers for the Commons, the acquittal of the 
defendant might chiefly depend. This recommendation 
was at first supposed to procceed only from the partiality 

' Sir Thomas E imbold had married Joanna, Bishop Law's youngest 
daughter. 



I20 REIGN OF GEORGE III. [1788. 

of lelationship ; but upon inquiry it appeared to be 
judicious. The resolution was, therefore, taken to em- 
ploy Law as the leading counsel, associating with him 
Mr. Plomer, afterwards Vice-Chancellor and Master of 
the Rolls, and Mr. Dallas, afterwards Solicitor General 
and Chief Justice of the Common Pleas — in whom Law 
entirely confided, and with whom he ever cordially co- 
operated. He still wore a stuff gown when this retainer 
was given, but he was clothed in silk before the trial 
began. 

He pnrpared himself for the task he had undertaken 
with exemplary diligence and assiduity. Carrying along 
with him masses of despatches, examinations, and re- 
ports, which might have loaded many camels, he re- 
treated to a cottage near the lake of Windermere, and 
there spent a long vacation, more laborious than the 
busiest term he had ever known in London. Although 
possessing copiousness of extempore declamation, he 
was fond of previously putting down in writing what he 
proposed to say in public on any important occasion, and 
there are now lying before me scraps of paper on which 
he had wntteH, during this autumn, apostrophes to the 
Lords respecting the Rohilla war, the cruelties of Debi 
Sing, and the alleged spoliation of the Begums. 

On the 19th of February, 1788, Mr. Burke having 
finished a speech of four days, in which he generally 
opened all the charges, Mr. Fox, his brother manager, 
proposed that thereafter all the charges should be taken 
separately, and that not only the evidence and argu- 
ments should be concluded by both sides, but that the 
judgment should be given by the Court upon each before 
another was taken in hand. Now Mr. Law for the first 
time opened his mouth as counsel for Mr. Hastings, and 
strongly resisted this proposal. He distinctly saw that 
upon the mode of procedure depended the issue of the 
impeachment, for there not only was a strong prejudice 
against the accused, which would have rendered perilous 
a speedy decision upon any part of his case, but the 
defense really arose from a view of the whole of his 
conduct while Governor-General ; — the difficulties in 
which he was placed palliating, if they did not j ustify, acts 
which, taken by themselves, appeared criminal. The 



1792] LORD ELLENBOROUGH. m 

managers, feeling the advantage they must derive from 
having a separate trial, as it were, on each charge, 
strenuously argued that this was the parliamentary 
course according to Lord Strafford's case and other pre- 
cedents — that the due weight of evidence was most truly 
appreciated while it was fresh in the memory — and that 
facility of conception, notwithstanding the vastness of 
the subject, might best be attained by subdividing it 
into parts which the mind might be capable of grasping. 
Law, in answering them, availed hi-tnself of the op- 
portunity to animadvert upon the violent language used 
by Burke, saying that " the defendant, who was still to 
be presumed to be innocent till proved to be guilty, had 
been loaded with terms of invective and calumny in a 
strain which, never since the days of Sir Walter Raleigh, 
had been used in an English court of justice." Mr. Fox, 
interrupting him, said that, " vested with a great trust 
from the House of Commons, he could not sit and hear 
such a complaint, which proceeded on the principie that 
in proportion as the accused was deeply guiky, the 
accuser, in describing his crimes, was to be considered a 
calumniator." Law, without any retractation or apology, 
pursued his argument against the course proposed by 
the managers, insisting that while it was contrai y to the 
mode of proceeding in the courts of common law, there 
was no parliamentary precedent to support ii. " My 
Lords," said he, " in answering one charge w>j may be 
compelled to disclose to our adversary the defease which 
we mean to employ upon others. We conceive that the 
whole case should be before you ere you decide upon 
any part of it. On the first charge are we, f^-r the pur- 
pose of explaining the general policy with nfhich it is 
connected, to produce all the evidence specifically cal- 
culated to repel several others ? On the second charge, 
is the whole of the exculpatory evidence to be given over 
again? lathis just? is it reasonable? is it expedient? 
VVould it be proposed in any other court professing to 
administer the criminal law of the country? ' 

The Peers withdrew to their own chambtr to deliber- 
ate, and on their return to Westminster Hall, the Lord 
Chancellor Thurlow thus addressed the managers : " Gen- 
tlemen, I have it in charge to inform you 1 nat you are to 



122 REIGN OF GEORGE III. [1792. 

produce all your evidence in support of the prosecution 
before Mr. Hastings is called upon for his defense." 

During the examination of the witnesses there was a 
constant sparring between the counsel and the managers, 
and blows were interchanged with all the freedom of 
nisi prius. For example, when Sheridan was examining 
Mr. Middleton for the prosecution, and finding him 
rather adverse, addressed some harsh observations to 
him, Law thus interposed — " I must take the liberty of 
requesting that the honorable manager will not make 
comments on the evidence of the witness in the pres- 
ence of the witness. Such a course will tend to increase 
the confusion of a witness who is at all confused, and 
affect the confidence of the niost confident. I shall, 
therefore, hope that the honorable manager, from hu- 
manity and decorum, will be more abstemious." 

The managers having entirely failed to prove one par- 
ticular act of misconduct which they had imputed to 
Mr. Hastings, Law expressed a wish that in future they 
would be more cautious in avoiding calumny and slan- 
der. Burke answered, with much indignation, that " he 
was astonished the learned gentleman dared to apply 
such epithets to charges brought by the Commons of 
Great Britain, whether they could or could not be proved 
by legal evidence ; it was well known that many facts 
could be proved to the satisfaction of every conscien- 
tious man by evidence which, though in its own nature 
good and convincing, would not be admitted by the 
technical canons of lawyers ; it would be strange, in- 
deed, that a well-founded accusation should be denom- 
inated calumnious and slanderous, because an absurd 
rule prevented the truth of it from being established." 

Law : " My Lords, I do not mean to apply the terms 
calumny and slander to any proceeding of the House of 
Commons ; but I have the authority of that House for 
declaring that the honorable member has, at your Lord- 
ships' bar, used calumnious and slanderous expressions 
not authorized by them." 

Fox: "My Lords, it is highly irregular and highly 
indecent in an advocate to allude to what has taken 
place within the walls of the House of Commons. The 
learned counsel has done worse, he has misrepresented 



I792.J LORD ELLENBOROUGH.. 123 

that to which he presumed to allude. We have offered 
in evidence the very documents upon the authority of 
which the Commons preferred the charge now said to be 
calumnious and slanderous." 

Law : " I cannot justly be accused of improperly re- 
ferring to proceedings in the House of Commons, as4 
have only repeated in substance the account given of . 
these proceedings by the honorable manager himself in 
the hearing of your Lordships — and I have, therefore, ■ 
the highest authority for asserting that my client has ' 
suffered from calumny and slander." ' ' 

Fox : " Here is a new misrepresentation. My honor- 
able friend has not told your Lordships that anything said 
by the managers at your Lordship's bar was a calumny 
or a slander, nor said anything which can be tortured 
into such a meaning. And, my Lords, we will not pro- 
ceed with the trial till your Lordships have expressed 
your opinion of the language used by the learned gen- 
tleman. We must return to the Commons for fresh in- 
structions." 

Tkurlow, C. : " The words you complain of must be 
taken down in writing." 

They were taken down accordingly. 

Law : " I acknowledge them and abide by them." 

The Peers were about to withdraw for deliberation to 
their own chamber, when it was suggested and agreed 
that the Chancellor should admonish the learned coun- 
sel, " that it was contrary to order in the counsel to ad- 
vert to anything that had happened in the House of 
Commons ; that it was indecent to apply the terms 
calumny and slander to anything which had been said 
by their authority, and that such expressions must not 
be repeated." 

The great struggle was, whether the Lords wereto be 
governed by the rules of evidence which prevail in the 
courts below. These Burke treated with great contempt. 
On one occasion, he said : — 

" The accused rests his defense on quibbles, and ap- 
pears not to look for anything more honorable than an 
Old Bailey acquittal, where on some flaw in the indict- 

' This refers to a resolution of the House of Commons animadverting 
on expressions used by Mr. Burice. 



12^ REJGN OF GEORGE III. [1792. 

ment the prisoner is found not guilty, receives a severe 
reprimand from the Judge, and walks away with the ex- 
ecration of the bystanders. No rule which stands in the 
way of truth and justice can be bifWing on this high 
court." 

Law : " In the name of my client, in the name of the 
people of England, I protest against such doctrine. The 
rules of evidence have been established because by ex- 
perience they have been found calculated for the dis- 
covery of truth, and the protection of innocence. If any 
of them are erroneous, let them be corrected and 
amended, but let them be equally binding upon your 
Lordships and the inferior courts. Are you to dismiss 
every standard of right, and is a party tried at your 
Lordships' bar — his honor and his life being at stake — 
to be cast upon the capricious, I will not say corrupt, 
opinion entertained or professed by a majority of your 
Lordships? Why do you summon the Judges of the 
land to assist you but that you may be informed by 
them for your guidance what are the rules of law ? Un- 
less the rules of law are to prevail, a reference to these 
reverend sages would be a mockery, and you should 
order them forever to withdraw." 

The Lords very properly held that the rules of law 
respecting the admissibility of evidence ought to guide 
them ; and during the trial they twenty-three times 
referred questions of evidence' to the Judges, being 

' I have examined the questions and answers as they appeared in the 
Journals of the House of Lords, but they are not instructive, or of much 
value. With a single exception, they were not so framed as to decide any 
abstract point, and merely asked whether, under the actual circumstances 
Afhich occurred, specific evidence was admissible. 

One response to a question put was of general application, and might 
have been advantageously cited in the late case of Melhuish v. Collier, 15 
Q. B. 878 

Questions put to the Judges during Judges' reply to the said questions, as 
the trial of Warren Hastings, Esq. entered on the Lords' Journals. 

Feb. 29, 1788. April 10. 

Whether, when a witness, pro- The Lord Chief Baron delivered 

duced and examined in a criminal the unanimous opinion of the Judges, 

proceeding by a prosecutor, dis> that, when a witness produced and 

claims all knowledge of any matte. examined in a criminal proceeding 

so interrogated, it be competent for by a prosecutor disclaims all knowl- 

such prosecutor to pursue such ex- edge of any matter so interrogated, 

amination, by proposing a question it is not competent for such prosecu- 



I792-] LORD ELLENBOROUGH. 125 

always governed by their advice." But to the conclu- 
sion of the trial Burke bitterly complained, as often as 
any evidence which the Managers proposed to adduce 
was excluded in compliance with the opinion of the 
Judges. On one occasion, when evidence irregularly 
offered by the Managers in reply had been very prop- 
erly rejected, a Peer called Burke to order for arguing 
against a decision of the House. Mr. Hastings's leading 
counsel contemptuously. added, that he would not waste 
a moment of their Lordships' time in supporting a judg- 
ment which, being founded on a rule of law, wanted no 
other support. Burke: " I have become accustomed to 
such insolent observations from the learned gentlemen 
retained to obstruct our proceedings, who, to do them 
justice, are as prodigal of bold assertions as they are 
sparing of arguments." 

When the Lords disallowed the evidence of the his- 
tory of the Mahratta war. Law having merely said, " It 
would be an insult to their Lordships, and treachery to 
his client, were he to waste one minute in stating the 
objections to it," Burke expressed deep regret that so 
many foreigners were present ; but (looking into a box 
in which sat the Turkish ambassador and his suite, he 
added) " let us hope that some of them do not understand 
the English language, as the insolent remarks we are 
compelled to hear from counsel would be a disgrace to a 
Turkish court of justice." 

Law was more hurt when, at a later period of the trial, 
having called upon Burke to retract an assertion alleged 
to be unfounded, the Right Honorable Manager, putting 
on a look of ineffable scorn, merely said in a calm tone, 
" My Lords, the counsel deserves no answer." Soon 

containing the particulars of an an- tor to pursue such examination, by 
swer supposed to have been made proposing a question containing the 
by such witness before a Committee particulars of an answer supposed 
of the House of Commons, or in any to have been made before a Com- 
other place, and by demanding of mittee of the House of Commons, or 
him whether the particulars so sug- in any other place, and by demand- 
gested were not the answers he had ing of him whether the particulars 
so made ? 5° suggested were not the answer he 

had so made. 
' The same course was subsequently followed on the impeachment of 
Lord Melville, and is now to be considered the established law of Parlia- 
ment. 



126 REIGN OF GEORGE III. [1792. 

after, Law, complaining of the delay caused by the 
frivolous questions on evidence raised by the Managers, 
added, "The Right Honorable Manager to whom I 
chiefly allude, always goes in a circle, never in a straight 
line. The trial will bring discredit on all connected with 
it. We owe it to our coninion character to prevent un- 
neccessar}- delay." " Common character !" angrily in- 
terrupted the Manager, " I can never suffer the dignity 
of the House of Commons to be implicated in the com- 
mon character of the bar. The learned counsel may 
take care of his own dignity — ours is in no danger ex- 
cept from his sympathy." 

But it was by the rejection of evidence of the alleged 
cruelties of Raja Debi Sing that Burke was driven 
almost to madness. His recital of these in his opening 
speech had produced the most tremendous effect, curd- 
ling the blood of the stoutest men, and making the 
ladies shriek aloud and faint away.' A witness being 
called to prove these horrid charges, the counsel for Mr. 
Hastings objected that the evidence was inadmissible 
as there was no mention of such cruelties in any article 
of the impeachment, and it was not even now suggested 
that Mr. Hastings had directed them, or in any way 
sanctioned or approved of them. The Lords, after con 
suiting the judges, determined that the evidence could' 
not be received. 

Mr. Burke : " I must submit to your Lordships' de- 
cision, but I must say at the same time that I have 
heard it with the deepest concern ; for if ever there was 
a case in which the honor, the justice, and the character 
of a country were concerned, it is that which relates to 

' " The treatment of the females cannot be described : dragged from the 
inmost recesses of their houses, which the religion of the country had made 
so many sanctuaries, they were exposed naked to public view ; the virgins 
were carried to courts of justice, where they might naturally have looked 
for protection, but they looked for it in vain ; for in the face of the ministers 
of justice, in the face of assembled multitudes, in the face of the sun, 
those tender and modest virgins were brutally violated. The only difference 
between their treatment and that of their mothers, was that the former were 
dishonored in open day, the latter in the gloomy recesses of their dungeon. 
Other females had the nipples of their breasts put in a cleft of bamboo and 
torn off. What modesty in all nations most cai-efuUy conceals, this monster 
revealed to view, and consumed by slow (ires, and the tools of this monster, 
Debi Sing— horrid to te'.l ! — carried their natural brutality so far as to in- 
troduce death into the source of generation and of life," 



I792-] LORD ELLENBOROUGH. 127 

the disgusting cruelties and savage barbarities perpe- 
trated by Debi Sing, under an authority derived from 
the British Government, upon the poor, forlorn inhab- 
itants of Dinagepore — cruelties and barbarities so fright- 
fully and transcendently enormous, that the bare men- 
tion of them has filled with horror every class of the in- 
habitants of this country. The impression which even 
my feeble representation of these cruelties and barbari- 
ties in this place produced upon the hearts and feelings 
of all who heard me is not to be removed but by the 
evidence that shall prove the whole a fabrication. The 
most dignified ladies of England swooned at the bar-; 
recital of these atrocities, and is no evidence now to be 
received to prove that my forbearing statement fell far 
short of the appalling reality ?" 

Law : " It is not to be borne that the Right Honor- 
able Manager shall thus proceed to argue in reprobation 
of their Lordships' judgments." 

Burke : " Nothing can be farther from my intention 
than to reprobate any decision coming from a Court for 
which I entertain the highest respect. But I am not a 
little surprised to find that the learned counsel should 
stand forth the champion of your Lordships' honor. I 
should have thought that your Lordships were the best 
guardians of your own honor. It never could be the in- 
tention of the Commons to sully the honor of the 
House of Peers. As their co-ordinate estate in the legis- 
lature the Commons are perhaps not less interested than 
your Lordships in the preservation of the honor of this 
noble House ; and therefore we never could think of ar- 
guing in reprobation of any of its decisions. But I may 
venture to suggest that the question which you have put 
to the Judges is not framed in the manner to determine 
whether what the Commons propose is reasonable or un- 
reasonable. If the Commons had been suffered to draw 
up their question themselves, they would have worded 
it in a very different manner, and a very different de- 
cision might have been given by your Lordships. It is 
true that the cruelties of Debi Sing are not expressly 
charged in the Article to have been committed by the 
authority of Mr. Hastings; but the Article charges Mr. 
Hastings with having established a system which he 



128 REIGN OF GEORGE III. [1792 

knew would be, and in poi it of fact had actually been 
attended with cruelty and oppression. The Article does 
not state by whom the acts of cruelty have been com- 
mited, but it states cruelty in general, and of such cru- 
elty so charged the Managers have a right to give evi- 
dence. The character of the nation will suffer, the honor 
of your Lordships' will be affected, if when the Com- 
mons of England are ready to prove the perpetration of 
barbarities which have disgraced the British name, and 
call for vengeance on the guilty heads of those who have 
been in any degree instrumental in them, the inquiry is 
to be stopped by a miserable technicality. Suffer me to 
go into proof of those unparalleled barbarities, and if I 
do not establish them to the full conviction of this 
House and of all mankind, if I do not prove their im- 
mediate and direct relation to and connection with the 
system established by Mr. Hastings, then let me be 
branded as the boldest calumniator that ever dared to 
fix upon unspotted innocence the imputation of guilt. 
My Lords, I have done. My endeavor has been to res- 
cue the character and justice of my country from ob- 
loquy. If those who have formerly provoked inquiry — 
if those who have said that the horrid barbarities which 
I detailed had no existence but that which they derived 
from the malicious fertility of my imagination — if those 
who have said that I was bound to make good what I 
had charged, and that I should deserve the most oppro- 
brious names if I did not afford Mr. Hastings an oppor- 
tunity of doing away the impression made by the pic- 
ture of the savage cruelties of Debi Sing — if these same 
persons who so loudly called for inquiry now call upon 
your Lordships to reject the proofs which they before 
challenged me to bring, the fault is not mine. Upon 
the heads of others, therefore, and not upon those of the 
Commons of Great Britain, let the charge fall that the 
justice of the country is not to have its victim. The 
Commons stand ready to make good their accusation, 
but the defendant shrinks from the proof of his guilt." 

Law [according to the original report of the trial, 
" with unexampled warmth, whether real or assumed "] : 
" My Lords, the Right Honorable Manager feels bold 
only because he knows the proof which he wants to give 



1 792-] LORD ELLENBOROUGH. 



I2r, 



canftot be received. He knows that from the manner in 
which the charge is worded your Lordships caiiriot if you 
would admit the proof without violating the clearest 
rules and principles of criminal procedure. But let the 
Commons put the details of those shocking cruelties into 
the shape of a charge which my client can meet, and the;i 
we will be ready to hear every proof that can be adduced. 
And if, when they have done that, the much-injured 
gentleman I am now trying to shield from calumny does 
not falsify every act of cruelty that the Honorable 
Managers shall attempt to prove upon him, mav the 
HAND OF THIS HOUSE AND THE HAND OF GOD LIGH J" 
UPON HIM." ' 

This imprecation on the head of the client was deemed 
more cautious than magnanimous, and it was thus criti- 
cised by Fox in summing up the evidence of this 
Article : — 

"The counsel of the defendant have invoked the judg- 
ment of your Lordships and the vengeance of Almighty 
God, not on their own heads, but on the head of their 
client, if the enormities of Debi Sing, as stated by my 
Right Honorable Friend, shall be proved and brought 
home to him. I know not how the defendant may relish 
his part in this imprecation ; but in answer to it, if the 
time should come when we are fairly permitted to enter 
upon the proof of those enormities, I would in my turn 
invoke the most rigorous justice of the Peers and the 
full vengeance of Almighty God, not on the head of my 
Right Honorable Friend, but on my own, if I do not 
prove those enormities and fix them upon the defendant 
to the full extent charged by my Right Honorable 
Friend ; and this I pledge myself to do under an im- 
precation upon myself as solemn as the learned gentle- 
man has invoked upon his client." 

These imprecations can only be considered rhetorical 
artifices ; both sides were well aware that the contingency 
oh which they were to dare the lightning of Heaven 
could never arrive, for the Articles of Impeachment, as 

' The reporter, who seems to have have had a spite against Mr. Law, adds, 
■' After this ejaculation, delivered in a tone of voice not unlike that of the 
theatric hero, when he exclaims ' Richard is hoarse with calling thee to 
battle ! ' the scene closed." — ' History of the Trial of Warren Hastings, 
Esq.," published by Debrett, Part III., p. 54-56. 



I30 REIGN OF GEORGE III. [3792. 

framed, clearly did not admit the proof, and a fresh 
Article could not then have been introduced. In truth, 
the cruelties of Debi Sing had been much exaggerated, 
and Mr. Hastings, instead of instigating, had put a stop 
to them. His counsel must have deliberated long before 
they resolved to object to the admissibility of the 
evidence, and they were probably actuated by a dread of 
the prejudice it might create before it could be refuted. 

Law turned to good account the frivolity and vanity 
of Michael Angelo Taylor, a briefless barrister, who, al- 
though the butt of the Northern Circuit, had contrived 
to get himself appointed a Manager. An important 
point coming on for argument, Law observed — " It is 
really a pity to waste time in discussing such a point 
which must be clear to all lawyers ; this is no point of 
political expediency, it is a mere point of law, and my 
honorable and learned Friend there (pointing to Michael 
Angelo), from his accurate knowledge of the law, which 
he had practiced with so much success, can confirm fully 
what I say." Michael puffed, and swelled, and nodded 
his head — when Burke ran up to him quite furious, and, 
shaking him, said, " You little rogue, what do you mean 
by assenting to this? " 

Law was most afraid of Sheridan, but once ventured 
to try to ridicule a figurative observation of his that 
" the treasures in the Zenana of the Begum were an 
offering laid by the hand of piety on the altar of a saint," 
by asking " how the lady was to be considered a saint, 
and how the camels when they bore the treasure were to 
belaid upon the altar?" Sheridan — "This is the first 
time in my life that I ever heard of special pleading on 
a metaphor, or a bill of indictment against a trope ; but 
such is the turn of the learned gentleman's mind that 
when he attempts to be humorous no jest can be found, 
and when serious no fact is visible." 

Considering that the Managers were assisted by the 
legal acumen and experience of Dr. Lawrence, Mr. 
Mansfield, and Mr. Pigott, it is wonderful to see what 
questions they put and insisted upon. For example, it 
being proved that Mr. Hastings had authorized the 
letting of certain lands to Kelleram and Cullian Sing, 
supposed to be cruel oppressors, they asked witness— 



I792-] LORD ELLENBOROUGH. 131 

" What impression the letting of the lands to Kelleram 
and Cullian Sing made on the minds of the inhabitants 
of the country? " Before there was time to object, the 
witness blurted out, "They heard it with terror and dis- 
may." Law insisted that this answer should be ex- 
punged, and that the question should be overruled, it 
not being in the competence of the witness to speak of 
anybody's feelings but his own. The Managers standing 
up strenuously for the regularity of their question and 
the fitness of the answer to it, the Peers adjourned 
from Westminster Hall to their own chamber, and, after 
a reference to the Judges, Lord Chancellor Thurlow an- 
nounced to the Managers that the question objected to 
could not be regularly put, and that the answer to it 
must be expunged. Nearly a whole day was wasted in 
this foolish controversy. 

On the 14th of February, 1792, and the seventy- 
fifth day of the trial. Law thus began to open the 
defense : — 

" Your Lordships are now entering on the fifth year 
of a trial, to which the history of this or any other coun- 
try furnishes nothing like a parallel ; and it at length be- 
comes my duty to occupy somewhat longer the harassed 
and nearly exhausted attention of your Lordships, and 
to exercise reluctantly the expiring patience of my 
client. Mr. Hastings, by the bounteous permission of 
that Providence which disposes of all things, with a con- 
stitution weakened by great and incessant exertions in 
the service of his country and impaired by the influence 
of an unwholesome climate — suffering from year to year 
the wounds which most pierce a manly and noble mind 
— the passive listener to calumny and insult — thirsting 
with an honorable ardor for the public approbation 
which illustrious talents and services ever merit — while 
malignity and prejudice are combining to degrade him 
and blacken his fair reputation in the eyes of his coun- 
try — subdued by the painful progress of a trial pro 
tracted to a length unexperienced before by any British 
subject, and unprecedented in the annals of any other 
country — under all these accumulated hardships Mr. 
Hastings is alive this day, and kneeling at your Lord- 
ships' bar to implore the protection, as he is sure of the 



132 REIGN OF GEORGE HI. [1792- 

justice, of this august tribunal. To a case pampered — 
I had almost said corrupted — by luscious delicacies, the 
advocates of my client can only bring plain facts and 
sound arguments ; but we can show that eloquence has 
been substituted for proofs, and acrimony has supplied 
the place of reasoning. I could never be brought to 
believe that justice was the end looked for, where ven- 
geance was the moving power." 

After an exordium not wanting in dignified solemnity, 
although creating a wish for more purity and simplicity 
of diction, he proceeded to take a general view of the 
origin of the prosecution, of the charges into which it 
was divided, of the feeble manner in which they had 
been supported, and of the evidence by which they were 
to be repelled. Upon the whole, he rather disappointed 
expectation. Although he had shown spirit and energy 
while wrangling with the managers about evidence, and 
although still undaunted by the matchless power of in- 
tellect opposed to him, now when he had all Westmin- 
ster Hall to himself and he was to proceed for hours and 
days without interruption or personal contest, he quailed 
under the quietude, combined with the strangeness and 
grandeur of the scene. He by no means satisfied the 
lively Miss Burney, then attached to the Royal house- 
hold, who were all, as well as the King and Queen, de- 
voted enemies to the impeachment, and thought no 
praise sufficiently warm which could be bestowed upon 
the accused. This is her disparaging language in her 
Diary : — 

" To hear the attack the people came in crowds ; to 
hear the defense they scarcely came in tete-k-tete. Mr. 
Law was terrified exceedingly, and his timidity induced 
him so frequently to beg quarter from his antagonists, 
both for any blunders and any deficiencies, that I felt 
angry even with modest egotism. We (Windham and I) 
spoke of Mr. Law, and I expressed some dissatisfaction 
that such attackers should not have had able and more 
equal opponents. ' But do you not think that Mr. Law 
spoke well,' cried Windham^' clear, forcible?' 'Not 
forcible,' cried I — ' I would not say not clear.' ' He was 
frightened,' said Windham ; ' he might not do himself 
justice. I have heard him elsewhere, and been very well 



1 792-] LORD ELLENBOROUGH. 133 

satisfied with him ; but he looked pale and alarmed, and 
his voice trembled.' " 

However, she adds — 

" In his second oration Mr. Law was far more ani- 
mated and less frightened, and acquitted himself so as 
almost to merit as much commendation as, in my opin- 
ion, he had merited censure at the opening." 

It is a curious fact that the State Trial which, of all 
that have taken place in England, excited the most in- 
terest, is the worst reported. We have no account of it 
except from a set of ignorant short-hand writers, who, 
although they could take down evidence with sufficient 
accuracy, were totally incapable of comprehending the 
eloquent speeches which v/ere made on either side. 
Burke having observed that " virtue does not depend 
upon climates and degrees" he was reported to have said, 
" virtue does not depend upon climaxes and trees." 

The only authentic specimens I can give of Mr. Law's 
oratory when he was addressing the Lords on the merits 
of the impeachment are the prcemium and the perora- 
tion of his speech on the Begum charge, which are now 
in my possession, written by his own hand, and which 
he had elaborately Composed at full length, and got by 
heart, although he trusted to short notes for his com- 
ments upon the evidence : — 

" Again, my Lords, after a further period of pro- 
tracted solicitude, Mr. Hastings presents himself at 
your Lordships' bar, with a temper undisturbed, and a 
firmness unshaken, by the lingering torture of a six 
years' trial. 

" God forbid that in the mention of this circumstance 
I should be understood to arraign either the justice or 
mercy of this tribunal. No, my Lords, all forms of 
justice have been well observed. My blame lights on 
the law, not on your office, ' which you with truth and 
mercy minister.' ' As little I advert to this circumstance 
13 seeking on this account unduly to interest your Lord- 
ships' compassion and tenderness in his favor. No, my 
Lords, as he has hitherto disdained to avail himself of 
anv covert address to these affections, so your Lordships 
ma}-, I trust, be assured that he does not feel himself 
more disposed at-this moment than at any former period 



134 



REIGN OF GEORGE III. {^l^S- 



of his trial to sully the magnanimity of his past life by 
the baseness of its close. 

" He does not even now on his own account merely 
condescend to lament the unfortunate peculiarity of his 
destiny which has marked him out as the only man 
since man's creation who has existed the object of a trial 
of such enduring continuance; for, my Lords, he has 
the virtue, I trust, as far as human infirmity and frailty 
M ill permit, to lose the sense of his own immediate and 
peculiar sufferings in the consolatory reflection which his 
mind presents to him — that as he is in the history of 
mankind the first instance of this extraordinary species 
of infliction, so unless he vainly deems of the effect of 
this instance upon the human mind, and has formed a 
rash and visionary estimate of the generosity and mercy 
of our nature, it will be the last. 

" He trusts, indeed, that with reference to his own 
country at least, he may venture to predict, what the 
great Roman historian, Livy, in contrasting a new and 
barbarous punishment, inflicted in the infancy of the 
Roman empire, with the subsequent lenity and humanity 
of the system of the penal laws which obtained amongst 
his countrymen, ventured in nearly the same words to 
declare — 'Primum ultimumque illud supplicium apud 
Romanos exempli parum memoris legum humanarum 
fuit." Dismissing, however, a topic which in the present 
advanced stage of this trial has become at least as ma- 
terial for consideration with a view to the happiness and 

' This, it will be recollected, relates to the case of Mettius Fuffetius, who 
for his treatchery was sentenced to a frightful death by TuUus Hostilius. 
This historian in a few lines beautifully narrates the sentence, the execu- 
tion, and the behavior of the lookers on: — "Turn TuUus: ' Metti Fuffeti,' 
inquit, 'si ipse discere posses fidem ac fcedera sei-vare, vivo tibi ea dis- 
ciplina a me adhibita esset. Nunc quoniam tuum insanabile ingenium est, 
at tu tuo supplicio doce humanum genus ea sancta credere, quae a te violata 
sunt. Ut igitur pauUo ante animum inter Fidenatem Romanamque rem 
ancipitem gessisti, ita jam corpus passim distrahendum dabit. Exinde, 
DUABIS ADMOTIS QUADRIGIS, IN CURRU3 EARUM DISTENTUM ILLIGAT 
MeTTIUM — DEINDE IN DIVERSUM ITER EQUI CONCITATI, LACERUM IN 
UTROQUE CURRU CORPUS, QUA INH/ESERANT VINCULIS MEMBRA, FOR- 
LANTES.' 

" Avertere omnes a tanta foeditate spectaculi oculos. Primum ultimum- 
que illud supplicium apud Romanos exempli parum memoris lenum human- 
arum fuit, in aliis gloriari licet, nuUi gentium mitiores placuisse poenas." — 
Lib. I. c. 28. 



I795-J LORD ELLENBOROUGH. 



135 



safety of others as his own, the defendant only requests 
it may for the present so far dwell in your Lordships' 
memory as to exempt him from the blame of impatience 
if, thus circumstanced, he has ventured to expect such 
a degree of accelerated justice as a just attention to other 
public demands on your Lordships' time may consistently 
allow. 

" He cannot but consider the present moment as on 
some accounts peculiarly favorable to the consideration 
and discussion of the many important questions which 
present themselves for your Lordships' judgment in the 
course of this trial. 

" In a season of recommencing difficulty and alarm 
we learn better how to estimate the exigence of the mo- 
ment, and the merit of that moment well employed, 
than in the calmer season of undisturbed tranquillity. 

" We know then best how to value the servant and 
the service. We hear with awakened attention and con- 
ciliated favor the account which vigor, activity, and zeal 
are required to render of their efforts to save the state — 
and their success in saving it. In receiving the detail 
which ardent and energetic service are obliged to lay 
before us, by a sort of inconsistent gratitude we almost 
wish to find some opportunities of recompense in the 
voluntary exercise of our own virtues — some errors which 
candor may conceal — some excesses which generosity 
may be required to palliate. 

" The same motives which at such a season induce us 
to appreciate thus favorably, the situation, duties, and 
difficulties, and deserts of hazardous and faithful service, 
induce us also to contemplate with more lively indigna- 
tion the more open attacks of undisguised hostility ; 
with more poignant aversion and disgust the cold and 
reluctant requitals of cautious friendship, and with still 
more animated sentiments of detestation and abhorrence, 
the treacherous, mischievous attacks of emboldened in- 
gratitude. 

" These are sentiments which the present moment 
will naturally produce and quicken in every mind im- 
pregnated with a just sense of civil and political duty. 
Can I doubt their effect and impression here, where we 
are taught, and not vainly taught, to believe that eleva- 



136 REIGN OF GEORGE III. [1792— 

tion of mind and dignity of station are equally heredi- 
tary, and that your high court exhibits at once the last 
and best resort of national justice, and the purest image 
of national honor? 

" To you, my Lords, unadmonished by the ordinary 
forms and sanctions by which in other tribunals the at- 
tention is attracted and the conscience bound to the 
solemn discharge of judicial duty, the people of England, 
by a generous confidence equally honorable to them- 
selves and you, have for a long succession of ages in- 
trusted to your own unfettered and unprompted, because 
unsuspected honor — have intrusted the supreme and 
ultimate dispensation of British justice. 

" Such, then, being the tribunal, and such the season 
at which the defendant is required to account before it 
for certain acts of high public concernment done in the 
discharge of one of the greatest public trusts that ever 
for so long and in so arduous a period fell to the lot of 
any one man to execute, he cannot but anticipate with 
sanguine satisfaction that fair, full, and liberal con- 
sideration of his difficulties and of his duties, of the 
means by which those difficulties were overcome, and 
the manner in which those duties were discharged, which 
he is sure of receiving at your Lordships' hands. 

" The great length of your Lordships' time which this 
trial has already occupied, and the further portion of it 
which it must yet necessarily consume, renders it un- 
pardonable to waste a moment upon any subject not 
intimately connected with the very substance of the 
charges which yet remain to be discussed. I will there- 
fore without delay address myself to the immediate and 
actual topics which are most intimately connected with 
the charge now before you, which is contained in the 
Second Article of Impeachment, and respects principally 
the supposed injuries of the mother and grandmother ot 
the Nabob of Oude— ladies usually distinguished by the 
name of the Begums." 

A speech of many hours he concluded with this pero- 
ration : — 

" I have now at a greater length than I could have 
wished gone through the vastness of evidence which the 
managers have thought fit to adduce, and have discussed 



1 795-] LORD ELLENBOROUGH. 137 

many of the arguments which they have thought fit to 
offer in support of this charge, and have brought more 
immediately before your Lordships' views such parts of 
that evidence as completely repel the conclusions the 
managers have attempted to infer from an unfair selection 
and artificial collation of other parts of that same 
evidence. I have also generally opened to your Lord- 
ships the heads of such further evidence as we shall on 
our part, in further refutation of the criminal charges 
contained in this Article, submit to your Lordships' con- 
sideration, in order to establish beyond the reach of 
doubt that Mr. Hastings, in all the transactions now in 
question, behaved with a strict regard to every obligation 
of public and private duty, and effectually consulted and 
promoted the real and substantial interests of the country, 
and the honor and credit of the British name and 
character. Stripping this Article, therefore, of all the 
extraneous matter with which it has been very artfully 
and unfairly loaded, and reducing it to the few and simple 
points of which, in a fair iQgal view of the subject, it 
naturally consists — the questions will be only those 
which in the introduction to my address to your Lord- 
ships on this charge I ventured to state, namely, whether 
the Begums, hy their conduct during the disturbances 
occasioned by the rebellion, had manifested such a degree 
of disaffection and hostility towards the British interests 
and safety, as warranted the subtraction of the guarantee 
which had been theretofore voluntarily and gratuitously 
interposed for their protection ; and next, whether after 
that guarantee was withdrawn the Nabob was not 
authorized, upon every principle of public and private 
justice, to reclaim its rights, and we to assert our own. 

" If there be those who think Mr. Hastings ought to 
have pursued a formal detailed judicial inquiry on the 
subject of the notorious misconduct of the Begums, 
before he adopted any measures of prevention or punish- 
ment in respect of them ; — that he should have withheld 
his belief from the many eye and ear witnesses of the 
mischief they were hourly producing and contriving 
against us ; — I say to those who think that the un- 
questionable and then unquestioned notoriety of a whole 
country — corroborated by the positive testimony of «// 



138 REIGN OF GEORGE III. [i79S- 

the officers then in command in that country, speaking 
to facts within their own observation and knowledge, is 
not a ground for immediate political conduct — to persons 
thus thinking, I am furnished with little argument to 
offer. I have no record of the Begums' conviction en- 
grpssed on parchment to lay before you — I have only 
that quantity of evidence which ought to carry con- 
viction home to every human breast accessible to truth 
and reason. 

" God forbid that I should for a moment draw in 
question the solemn obligation of public treaties. I am 
contending for their most faithful, honorable, and exact 
performance. We had pledged our word to grant the 
most valuable and humane protection — we asked as a 
recompense only the common offices of friendship and 
the mere returns of ordinary gratitude. How were they 
rendered ? When the Palace of Shewalla and the streets 
of Ramnagur were yet reeking with the blood of our 
slaughtered countrymen ; — when that benefactor and 
friend, to whose protection, as the Begum herself asserts, 
her dying lord, Suja Dowla, had bequeathed her, had 
scarce rescued himself and his attendants from the mid- 
night massacre prepared for him at Benares ; when he 
was pent up with a petty garrison in the feeble fortress 
of Chunargur expecting the hourly assault of an elated 
and numerous enemy ; when his fate hung by a single 
thread, and the hour of his extinction and that of the 
British name and nation in India would, according to all 
probable estimate, have been the same ; in that hour of 
perilous expectation he cast many an anxious northward 
look to see his allies of Oude bringing up their powers, 
and hoped that the long-protected and much-favored 
house of Suja Dowla would have now repaid with volun- 
tary gratitude the unclaimed arrears of generous kind- 
ness. As far as concerned the son of that Prince, and 
who by no fault of Mr. Hastings had least benefited by 
British interposition, he was not disappointed. That 
Prince who had been in the commencement of his reign 
robbed of his stipulated rights under the treaties of Al- 
lahabad and Benares, and had been unjustly manacled 
and fettered by that of Fryzabad, which restrained him 
from his due resort to national treasure for the necessary 



1795] LORD ELLENBOROUGH. 



139 



purposes of national defense and the just discharge of 
national incumbrances, found an additional motive for 
his fidelity in the accumulated honorable distresses and 
dangers of his allies. From the mother and grand- 
mother of that Prince, enriched by his extorted spoils, 
and bound as they were by every public as well as pri- 
vate tie of gratitude and honor, Mr. Hastings looked, 
indeed, for a substantial succor; but he looked in vain. 
It was not, however, as passive and unconcerned spec- 
tators that they regarded this anxious and busy scene 
of gathering troubles. No ; to the remotest limits of 
their son's dominions their inveterate hate and detesta- 
tion of the British race was displayed in every shape 
and form which malice could invent and treachery as- 
sume. In the immediate seats of their own protected 
wealth and power, at the reverenced threshold of their 
own greatness, in sight of their nearest servant who best 
knew their genuine wishes, and was by that knowledge 
best prepared to execute them — -the British commander 
of a large force, marching to sustain the common inter- 
ests of Great Britain and its allies, is repelled by the 
menace of actual hostility from the sanctuary to which 
he had fled in assured expectation of safety. At the 
same period another British commander, abandoning his 
camp to the superior force of a rebellious chief, linked 
in mischievous confederacy with the Begums, hears 
amidst the groans of his own murdered followers the 
gratulation of his enemies' success and his own defeat 
proclaimed in discharges of cannon from the perfidious 
walls of Fryzabad. And during all this dism.ay and dis- 
comfiture of our forces in the neighborhood of their 
residence, the eunuchs, the slaves of their palace, under 
the very eye of our own insulted officers, array and equip 
a numerous and well-appointed force to brave us in the 
field. 

" If these acts do indeed consist with good faith, or 
are such light infractions of it as merit no considerable ' 
degree of public animadversion, then I resign Mr. Has- 
tings to the unqualified censure of mankind and the 
overwhelming condemnation of your Lordships. But 
if to have connived at another's treachery at such a 
crisis would have been effectually to prove and proclaim 



1 ) REIGN OF GEORGE III. [1795- 

hi:5 own ; if to have continued undiminished to the Be- 
gum the enormous fruits of her own original extortion 
and fraud, applied, as they recently had been, to the 
meditated and half-achieved purpose of our undoing, 
would have been an act of political insanity in respect 
to our own safety, and of no less injustice to our friend 
and ally, the proprietor of these treasures; then was 
Air. Hastings not warranted only, but required and with- 
out alternative or choice compelled, to apply that de- 
gree of lenient, sober, and salutary chastisement, which 
>vas, in fact, administered on this occasion. To have en- 
dured with impunity these public acts of hostile aggres- 
sion would have been to expose our tame, irrational for- 
bearance to the mockery and scorn of all the Asiatic 
world. Equally removed from the dangerous extremes 
of unrelenting severity and unlimited concession, he had 
the good fortune to preserve in every part of India a 
dread of our power, a respect for our justice, and an ad- 
miration of our mercy. These are the three great links 
by which the vast chain of civil and political obedience 
is riveted and held together in every combination of 
human society. By the due exertion and display of such 
qualities as these, one faithful servant was enabled to 
give strength, activity, stability, and permanence, and 
at last to communicate the blessings of peace and repose 
to the convulsed members of our Eastern empire. This 
age has seen one memorable and much-lamented sacri- 
fice to the extreme and excessive indulgence of the 
amiable virtues of gentleness and mercy.' The safety 
of our country, the order and security of social life, the 
happiness of the whole human race, require that polit- 
ical authority should be sustained by a firm, regular, 
and discriminate application of rewards and punish- 
ments." 

Mr. Law was supposed to do his duty in a manly and 
effective manner; but Dallas was more polished, and 
Plomer more impressive. The leading counsel gained 
renown in his squabbles with Burke about evidence, 
rather than when he had such an opportunity of making 
a great oration as Cicero might have envied. 

In the early .stages of the trial his labor and his an» 

' Alluding, I presume, to the fate of Louis XVI. 



1 795-] LORD ELLENBOROUGH. 14, 

iety were dreadful, and he often expressed sincere re- 
gret that he had been concerned in it ; but when he had 
become familiar with the subject, and public opinion, 
with which the Peers evidently sympathized, turned in 
favor of his client, he could enjoy the ^clat conferred 
upon him from pleading before such a tribunal, for such 
a client, against such accusers. 

At last, on the 23d of April, 1795, being the one hun- 
dred and forty-fifth day of the trial, and in the tenth 
year from the commencement of the crimination, he had 
the satisfaction to hear his client acquitted by a large 
majority of Peers ; and he himself was warmly congratu- 
lated by his friends upon the happy event. It was ex- 
pected that Burke would then have shaken hands with 
him ; but still in Burke's sight Debi Sing could hardly 
have been more odious. 

Law had long the credit of making the celebrated 
epigram upon the leader of the impeachment — 

" Oft have we wonder'd that on Irish ground. 
No poisonous reptile has e'er yet been found ; 
Reveal'd the secret stands of Nature's work — 
She saved her venom to produce her Burke." 

But it was composed by Dallas, as I was told, spontane- 
ously, by Dallas himself, when he was Chief Justice of 
the Common Pleas. A most rankling hatred continued 
to subsist between Burke and all Mr. Hastings's counsel. 
He regarded them as venal wretches, who were accom- 
plices in murder after the fact ; and they, in return, be- 
lieved the accuser to have relentlessly attempted to bring 
down punishment upon innocence that he might gratify 
his malignity and vanity. Yet they had never trans- 
gressed the strict line of their duty as advocates ; and 
he always sincerely believed that he was vindicating the 
wrongs of millions of our fellow-subjects in Asia. The 
three advocates considered their defense of Mr. Hast- 
ings as the most brilliant and creditable part of their 
existence ; and the accuser, undervaluing his writings 
against the French Revolution, which he thought only 
ephemeral pamphlets, exhorted Dr. Laurence, with his 
dying breath, to collect and publish an authentic report 
of the trial, saying, " By this you will erect a cenotaph 
most grateful to my shade, and will clear my memory 



142 -REIG.y OF GEORGE III. [1795. 

from that load which the East India Company, King, 
Lords, and Commons, and in a manner the whole British 
nation (God forgive them), have been pleased to lay as a 
monument on my ashes." 

Law's fees, considerably exceeding ^3,000, were a 
poor pecuniary compensation to him for his exertions 
and his sacrifices in this great cause; but he was ampl)- 
rewarded by his improved position in his profession. 
When his trial began he had little more than provincial 
practice, and when it ended he was next to Erskine — 
with a small distance between them. Independently 
of the real talent which he displayed, the very notoriety 
which he gained as leading counsel for Mr. Hastings was 
enough to make his fortune. Attorneys and attorneys' 
clerks were delighted to find themselves conversing at 
his chambers in the evening with the man upon whom 
all eyes had been turned in the morning in Westminster 
Hall — a pleasure which they could secure to themselves 
by a brief and a consultation". From the oratorical 
school in which he was exercised while representing 
Warren Hastings, Law actually improved considerably 
in his style of doing business ; and by the authority he 
acquired he was better able to cope with Lord Kenyon, 
who bore a strong dislike to him, and was ever pleased 
with an opportunitity to put him down. This narrow- 
minded and ill-educated, though learned and conscien- 
tious. Chief Justice, had no respect for Law's classical 
acquirements, and had been deeply offended by the 
quick-eared Carthusian laughing at his inapt quotations 
and false quantities. Erskine, who had much more tact 
and desire to conciliate, was the Chief Justice's special 
favorite, and was supposed to have his " ear " or " the 
length of his foot." Law, having several times, with no 
effect, hinted at this partiality — after he had gained 
much applause by his speech on the Begum charge, 
openly denounced the injustice by which he suffered. 
In the course of a trial at Guildhall he had been several 
times interrupted by the Chief Justice while opening 
the_ plaintiff's case, whereas Erskine's address for the 
defendant was accompanied by smiles and nods from his 
Lordship, which encouraged the advocate, contrary to 
his usual habit, to conclude with some expressions of 



1795-] LORD ELLENBOROUGH. 143 

menace and bravado. Law, having replied to these 
with great spirit and effect, thus concluded : 

" Perhaps, gentlemen, I may without arrogance assume 
that I have successfully disposed of the observations of 
my learned friend, and that the strong case I made for 
my client remains unimpeached. Still my experience 
in this Court renders me fearful of the result. I dread 
a power which I am not at liberty to combat. When I 
have finished, the summing up is to follow." 

Looking at Erskine he exclaimed, 

" Non me tua fervida terrent 

Dicta ferox — " 

He then made a bow to the Chief Justice, and as he sat 
down he added in a low, solemn tone, 

" Di me terrent et Jupiter hostis." 

Lord Kenyon, thinking that the quotation must be 
apologetical and complimentary, bowed again and 
summed up impartially. When it was explained to him, 
his resentment was very bitter, and to his dying day he 
hated Law. But henceforth he stood in awe of him, 
and treated him more courteously. 

At the breaking out o^ the French Revolution, Law 
joined the very respectable body of alarmist Whigs who 
went over to the Government, he being actuated, I be- 
lieve, like most of them, by a not unreasonable dread of 
democratical ascendency, rather than by any longing for 
official advancement. However, he refused offers of a 
seat in Parliament — even after the impeachment was 
determined. In society he acted the part of a strong 
Pittite, and he was accused of displaying " renegade 
rancor " against his former political associates : — but his 
friends asserted that " he had only been a Whig as 
Paley, his tutor, had been a Whig, and that he uniformly 
was attached to the principles of freedom, although he 
was always, for the good of the people, a friend to strong 
government." 

His position on the circuit fully entitled him to the 
appointment which he now obtained of Attorney General 
of the County Palatine of Lancaster, and he was fairly 
debuiicd to higher advancement, when Scott and Mitford, 



144 REIGN OF GEORGE III. [1795' 

the present law officers of the Crown, should be elevated 
to the bench. 

Meanwhile he conducted some State prosecutions in 
the provinces. Mr. Walker, a respectable merchant at 
Manchester, and several others, being indicted on the 
false testimony of an informer for a conspiracy to over- 
turn the Constitution, and to assist the French to invade 
England, Law conducted the case for the Crown, and 
Erskine came •r/£'«fl/ against him. At first the defendants 
seemed in great jeopardy, and Mr. Attorney of the 
County Palatine, believing the witness to be sincere, 
eagerly pressed for a conviction. A point arising about 
the admissibility of a printed paper, Erskine theatrically 
exclaimed, " Good God, where am I? " 

Law (with affected composure) : '■ In a British court of 
justice." 

.Sr.f^^w^ (indignantly) : " How are my clients to be ex- 
culpated? " 

Law (in a still quieter tone) : " By legal evidence." 

Erskine {vR\xz\i. excited): " I stand before the people of 
England for justice." 

Law (bursting out furiously) : " I am equally before 
the people of England for the protection of the people 
of England ; if you rise in this tone I can speak as loudly 
and as emphatically ; there is nothing which has betrayed 
improper passion on my part; but no tone or manner 
shall put me down." 

In the course of the trial the rivals were reconciled, 
and tried which could flatter best. 

Law : " I know what I have to fear upon this occasion. 
I know the energy and the eloquence of my learned 
friend. I have long felt and admired the powerful effect 
of his various talents. I know the ingenious sophistry 
by which he can mislead, and the fascination of that 
look, by which he can subdue the minds of those whom 
he addresses. I know what he can do to-day by remem- 
bering what he has done upon many other occasions 
before." 

Erskine : " Since I have entered the profession, I have 
met with no antagonist more formidable than my learned 
friend to whom I am now opposed. While admiring 
his candor and courtesy, I have had reason to know 



1795- 1 LORD ELLENBOROUGH 145 

the sharpness of his weapons and the dexterity of his 
stroke. 

' Stetimus tela aspera contra 

Contulimusque manus ; experto credite quantus 

In clypeum assurgat, quo turbine torqueat hastam.' " ' 

An acquittal took place : the guns which were to assist 
the French being proved to have been brought to fire 
a feu-de-joie on the King's recovery. The informer, being 
convicted of perjury, was sentenced, at the same assizes, 
to stand in the pillory, and to be imprisoned two years 
in Lancaster Castle." 

Law was more successful in prosecuting Mr. Redhead 
Vorke for sedition, but this prosecution reflects much 
discredit upon the times in which it took place. The 
defendant, at a public meeting, had made a speech, 
which he printed and circulated as a pamphlet, in favor 
of a reform in Parliament: animadverting with severity 
upon some of the proceedings of the House of Commons, 
and accusing that assembly of corruption. He was, 
therefore, indicted for a conspiracy " to traduce and 
vilify the Commons' House of Parliament, to excite 
disaffection towards the King and his government, and 
to stir up riots, tumults, and commotions in the realm.' 
Mr. Law, in opening the case to the jury, laid down that 
" whatever speech or writing had a tendency to lessen 
the respect of the people for the House of Commons 
was unlawful." He said, " In no country can a govern- 
ment subsist which is held in contempt. Does not every 
government under the sun take means, and must it 
not take means against such degrading insults? Why, 
in God's name, is the united dignity of the empire to be 
insulted in this way? What is the practical consequence 
of ridicule thrown on such a body? From the moment 
that men cease to respect, they cease to obey, and riot 
and tumult may be expected in every part of the king- 
dom." 

The defendant delivered a very able and temperate 
address to the jury ; but he was repeatedly interrupted 
by the Judge when making observations which we should 

' This quotation was afterwards applied by Mr. Canning to Lord 
Brougham. 
' 23 St. Tr. 1055. Lives of Chancellors, vi. 465. 

IV. — 10 



146 REIGN OF GEORGE III. [i795. 

think quite unexceptionable. A specimen may be both 
amusing and instructive : — 

Defendant: "You will recollect that the House of 
Commons, in one day, in the midst of a paroxysm of 
delusion, threw the liberties of the people at the foot 
of the throne ; I mean by the suspension of the Habeas 
Corpus Act. You will recollect that, in consequence of 
that suspension, every man was unsafe in his person — 
every man had reason to tremble for his life." 

Rooke, jf. : " I must check you, Mr. Yorke, when you 
talk of the House of Commons throwing the liberties 
of the people at the foot of the throne." 

Defendant : " If your Lordship had permitted me, I 
should have explained that idea." 

Rooke, y. : " I sit here upon my oath, and I cannot 
suffer any sentiment to pass that is at all disgraceful to 
that House." 

Defendant : " It was far from my intention. I was 
only stating that the Habeas Corpus Act was suspended, 
and was about to state the reason why. I consider the 
Habeas Corpus Act and the Trial by Jury as the firmest 
bulwarks of our liberties ; certain it is that the legisla- 
ture thought the country in danger — that it was neces- 
sary to strengthen the arm of government, and in some 
degree to weaken the liberties of the people. May not I, 
with your Lordship's permission, state what my percep- 
tion is of the constitution, in order that I may point out 
where the necessity for reform lies?" 

Rooke, y. : " Annual parliaments and universal suf- 
frage are the general principle upon which the witnesses 
say you have gone. Now, annual parliaments and uni- 
versal suffrage are contrary to the established constitu- 
tion of the country." 

Defendant: "Sir Henry Spelman, treating of the 
Anglo-Saxon government, says that the Michel-Gemote 
met in, annuo parliamento. Here is the Parliamentary 
Roll of 5 Ed. II." 

Rooke, J. : " The Crown called a parliament annually, 
without an annual election. Septennial parliaments are 
the law of the land, and I cannot hear you go on in that 
way." 

Defendant : 'i Septennial parliaments are unquestion- 



I799-J LORD ELLENBOROUGH. 147 

ably an actual law of the land; but what I mean to state 
IS, whether, according to the principles of the Revolu- 
tion, they ought to be so. Mav I not state it as my 
opinion?" ' 

Rooke, J. : " No." 

Defendant ; " Mr. Pitt himself and most of the great 
men have held the same language." 

Rooke, y. : " Not in a court of justice. I am bound 
by my oath to abide by the law, and I cannot suffer any- 
body to derogate from it." ' 

After a most intolerant reply from Mr. Law, and a 
summing up, in which the judge restated his doctrine 
with respect to finding fault with the existing constitu- 
tion of the House of Commons, the defendant was found 
guilty, and sentenced to two years' imprisonment in the 
Dorchester jail. What must have been the state of pub- 
lic feeling when such proceedings could take place with- 
out any censure in parliament, and with very little scan- 
dal out of it ? The reign of terror having ceased, and 
Englishmen being again reconciled to liberty, Mr. Red- 
head Yorke was much honored for his exertions in the 
cause of parliamentary reform, and he was called to the 
bar by the Benchers of the Middle Temple." 

Law gained very great credit with all sensible men 
from his conflict with Lord Kenyon about forestalling 
and regrating. He had studied successfully the princi- 
ples of political economy, and he admirably exposed the 
absurd doctrine that the magistrate can beneficially in- 
terfere in the commerce of provisions ; but he had the 
mortification to see his client sentenced to fine and im- 
prisonment for the imaginary crime of buying with a 
view to raise the price of the commodity.' 

I now come to what is considered the most brilliant 
passage of the life of the future Lord Ellenborough — his 
triumph over Sheridan at the trial of Lord Thanet and 
Mr. Fergusson for assisting in the attempt to rescue Ar- 
thur O'Connor. This trial excited intense interest. The 
government was most eager for a conviction, while the 
honor of the Whig party was supposed to require an ac- 

' Rooke was a very meek man, and at that time, I dare say, most of the 
other judges would have held similar language. 

« 25 St. Tr. 1003-I 54. ' R. V. Waddington, I East, 166. 



148 REIGN OF GEORGE III. [1799. 

quittal. Several police officers, examined for the Crown, 
swore that both defendants had taken an active part in 
favoring O'Connor's escape in the court at Maidstone ; 
but they were flatly contradicted by several respectable 
witnesses, who were corroborated by Mr. Whitbread ; 
and if the defendants' case had been closed there, in all 
probability they would have got off with flying colors. 
To make security doubly sure, Mr. Sheridan was called, 
and being examined by Erskine, he gave his evidence in 
chief in a very collected and clear manner ; but being 
cross-examined by Law, who had fostered a spite against 
him ever since their quarrel during Hastings's trial, he 
lost his head entirely and brought about a verdict of 
Guilty. To convey a proper notion of this encounter, 
the cross-examination must be given at length: 

L. : " I will ask you whether you do or do not believe 
that Lord Thanet and Mr. Fergusson meant to favor 
O'Connor's escape ?" 

5. .• " Am I to give an answer to a question which 
amounts only to opinion ?" 

L.: "I ask as an inference from their conduct, as it 
fell under your observation, whether you think Lord 
Thanet or Mr. Fergusson meant to favor Mr. O'Connor's 
escape — upon your solemn oath." 

5. .• " Upon my solemn oath I saw them do nothing 
that could be at all auxiliary to an escape." 

L. : " That is not an answer to my question." 

S. : " I do not wish to be understood to blink any 
question, and if I had been standing there and been 
asked whether I should have pushed or stood aside, 1 
should have had no objection to answer that question." 

L. : " My question is, whether, from what you saw of 
the conduct of Lord Thanet and Mr. Fergusson, they 
did not mean to favor the escape of O'Connor, upon 
your solemn oath?" 

S. : " The learned counsel need not remind me that I 
am upon my oath ; 1 know as well as the learned counsel 
does that I am upon my oath : and I will say that I saw 
nothing auxiliary to that escape." 

L. : " After what has passed, I am warranted in re- 
mmdmg the honorable gentleman that he is upon his 
oath. .My question is, whether, from the conduct of 



ngg-l LORD ELLENBOROUGH. 



149 



Lord Thanet and Mr. Fergusson, or either of them, as it 
fell under your observation, you believe that either of 
them meant to favor O'Connor's escape ?" 

5. .• " I desire to know how far I am obliged to an- 
swer that question. I certainly will answer it in this 
way, that from what they did, being a mere observer of 
what passed, I should not think myself justified in say- 
ing that either of them did. Am I to say whether I 
think they would have been glad if he had escaped ? 
That is what you are pressing me for." 

L. : " No man can misunderstand me ; I ask whether, 
from the conduct of Lord Thanet and Mr. Fergusson, 
or either of them, as it fell under your observation, you 
believe, upon your oath, that they meant to favor the 
escape of O'Connor ?" 

5. .• " I repeat it again, that from what either of them 
did, I should have no right to conclude that they were 
persons assisting the escape of O'Connor.'' 

L. : " I ask you again, upon your oath, whether you 
believe, from the conduct of Lord Thanet or Mr. Fer- 
gusson, that they did not mean to favor the escape of 
O'Connor?" 

S. : "I have answered that question already." 

Lord Kenyan : " If you do not answer it, to be sure we 
must draw the natural inference." 

5. .• " I have no doubt that they wished he might 
escape ; but from anything I saw them do, I have no 
right to conclude that they did." 

L. : " I will have an answer ; I ask you again, whether, 
from their conduct as it fell under your observation, you 
do not believe they meant to favor the escape of 
O'Connor?" 

S. : " If the learned gentleman thinks he can entrap 
me, he will find himself mistaken." 

Erskine : " It is hardly a legal question." 

Lord Kejtyon : " I think it is not an illegal question."' 

L. : " I will repeat the question, whether, from their 
conduct, as it fell under your observation, you do not 

' I think it is clearly an illegal question, and I am astonished that Erskine 
so quietly objected to it. I should at once overrule such a question ; for 
it does not inquire into a fact, or any opinion upon matter of science, but 
asks the witness, instead of the juiy, the inference as to the guilt or inno- 
cence of the accused to be drawn from the evidence. 



150 REIGN OF GEORGE III. [i799- 

believe that they meant to favor the escape of O'Con- 
nor?" 

S.: " My belief is, that they wished him to escape ; 
but from anything I saw of their conduct on that occa- 
sion, I am not justified in saying so." 

Erskine in vain tried to remedy the mischief by re- 
examination : — 

" You were asked by Mr. Law whether you believed 
that the defendants wished or meant to favor the escape 
of Mr. O Connor ; I ask you, after what you have sworn, 
whether you believe these gentlemen did any act to rescue 
Mr. a Connor?" 

S. : " Certainly not." 

E.: "You have stated that you saw no one act done 
or committed by either of the defendants indicative of 
an intention to aid in O'Connor's escape?" 

S. : " Certainly." 

E.: ' I ask you, then, whether you believe that they 
did take any part in rescuing Mr. O'Connor?" 

5. .• " Certainly not." 

However, the jury could never get over the WISH that 
O'Connor should escape ;' so both defendants were con- 
victed, and although their right arms were not cut off— 
the specific punishment to which it was said they were 
liable — they were sentenced to heavy fines and long im- 
ment.' 

There had hitherto been a certain mistrust of Law, 
on account of his early Whiggery ; but he was now 
hailed as a sincere Tory, and his promotion was certain. 

For several more years, however, no vacancy occurred, 
and his highest distinction was being leader of the 
Northern Circuit. There, indeed, he reigned supreme, 
without any brother being near the throne. He had 
completely supplanted Sergeant Cockell, who, notwith- 
standing a most curious nescience of law, had for some 
time been profanely called "the Almighty of the North." 

' Sheridan used afterwards to pretend that he had the best of it, and that 
he put Law down eftectually. Among other questions and answers not to 
be found in the full and accurate report of the short-hand writer who was 
present, he used to relate — " When Law said, ' Pray, Mr. Sheridan, do an- 
swer my question, without point or epigram,' I retorted, 'You say true, Mr. 
Law ; your questions are without point or epigram.' " 

• 27 St. Tf. 821. 



1 799-] LORD ELLENBOROUGH. 151 

Some juniors had taken the coif without emerging from 
obscurity, and the only other silk gown on the circuit 
was worn by " Jemmy Park," whom Law could twist 
round his finger at any time. Scarlett, in stuff, began to 
show formidable powers; but as yet was hardly ever 
trusted with a lead. Being so decidedly the " Cock of 
the Circuit," it is not wonderful that Law should crow 
very fiercely. According to all accounts, he did become 
excessively arrogant, and he sometimes treated rudely 
both his brother barristers and others with whom he 
came into collision. 

He was always ready, however, to give satisfaction for 
any supposed affront which he offered. Once he hap- 
pened, at York, to be counsel for the defendant in an 
action on a horse-race, the conditions of which required 
that the riders should be "gentlemen." The defense 
was that the plaintiff, who had won the race, was not a 
" gentleman." A considerable body of evidence was 
adduced on both sides, and Mr. Law commented upon 
it most unmercifully. The jury found for the defendant 
that the plaintiff was " not a gentleman." The defeated 
narty blustered much,, and threatened to call the auda- 
■^'is advocate to account. Law, putting off his journey 
to Durham for a day, walked about booted and spurred 
before the coffee-house, the most public place in York, 
ready to accept an invitation into the field or to repel 
force by force, because personal chastisement had like- 
wise been threatened. No message was sent, and no 
attempt was made to provoke a breach of the peace. 




CHAPTER XLVIII. 



CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH 
TILL HE WAS APPOINTED LORD CHIEF JUSTICE. 

THE great Northern Leader had reached his fifty- 
first year, and still the political promotion which 
he so earnestly desired never opened to him. Hav- 
ing till then, in his own language, " crawled along the 
ground without being able to raise himself from it," in 
the language of his friend Archdeacon Paley, " he sud- 
denly rose like an jeronaut." ' 

Mr. Pitt, in 1801, stepped down from the premiership, 
and, a new arrangement of legal offices following, Mr. 
Addington, the new minister, sent for Mr. Law, and 
offering him the Attorney Generalship, observed : " That 
as his ministry might be of short duration, and the 
sacrifice to be made considerable, comprising the lead 
of the Northern Circuit, to which there was no return, 
he would not expect an immediate answer, but hoped 
that in two days he might receive one ? " " Sir," said 
Mr. Law, " when such an offer is made to me, and com- 
municated in such terms, I should think myself disgraced 
if I took two days, two hours, or two minutes to de- 
liberate upon it ; I am yours, and let the storm blow 
from what quarter of the hemisphere it may, you shall 
always find me at your side." 

' Paley had been chaplain to Law's father, the bishop, who gave him hi* 
first preferment, and there was the strictest intimacy between Law and. 
Paley through life. The former, when Chief Justice, has been heard to say, 
" Although I owed much to Paley as an instructor (for he was practically 
my tutor at college), I was much more indebted to him for the independent 
tone of mind which I acquired through his conversation*and example ; Paley 
formed my character ; and 1 consider that I owe my success in life more to. 
my character than to any natural talents I may possess." Law corrected 
for Paley the proof-sheets of some of his works as they were passing througli 
the press ; and in Law's house, in Bloomsbury Square, there was an apart- 
ment which went by the name of " Paley's room," being reserved for the 
Archdescon when he p. id a visit to the metropolis. 



iSoi.J LORD ELLENBOROUGH. 153 

When he attended in the King's closet to kiss hands 
and to be knighted, George III., who had been recently 
in a state of derangement, and was as yet only partially 
recovered, after bidding him " rise. Sir Edward," said to 
him, " Sir Edward, Sir Edward, have you ever been in 
parliament ? " and being answered in the negative, added, 
" Right, Sir Edward ; quite right, Sir Edward ; for now, 
when you become my Attorney General, Sir Edward, you 
will not eat your own words. Sir Edward, as so many of 
your predecessors have been obliged to do, Sir Edward." 

In those Ante-Reform-Act days the Government al- 
ways — easily, and as a matter of course — provided seats 
in the House of Commons for the law-officers of the 
Crown, they paying only ^500 as a contribution to the 
Treasury-borough fund. A considerable number of seats 
were under the absolute control of the minister for the 
time being, and others, for a consideration in money or 
money's worth, were placed by borough proprietors at 
his disposal. The difficulty of getting and keeping a 
seat in the House of Commons, which now so much in- 
fluences the appointment to offices, was then never 
thought of. In consequence, the minister certainly had 
a more unlimited command of talent and fitness for 
public service. No one would now think of going back 
to the " nomination " system, ■ its conveniences being 
greatly outweighed by its evils; but the experiment may 
hereafter be made of allowing certain officers of the 
Crown, as such, to have voice without vote in the House 
of Commons. 

The new Attorney General, having deposited his ;^SOO 
with the Secretary of the Treasury, was returned for a 
close borough, and on the 2nd of March, 1801, he was 
sworn in at the table. 

He seems to have imbibed the doctrine for which I 
have heard the great Lord Lyndhurst strenuously con- 
tend, that no allusion ought to be made in parliament to 
any political opinions entertained or expressed by any 
individual before going into parliament. Having openly 
and zealously belonged to the Whigs till 1792 — after 
changing sides, Law was eager to embrrce every op- 
portunity of attacking or sneering at that party in theii 
subsequent prostrate condition 



154 



REIGN OF GEORGE III. [1802 



He entered St. Stephen's Chapel too late in life to be 
a skillful debater; but as often as he spoke he commanded 
attention by the energy of his manner and the rotundity 
of his phrases (reminding the old members of Thurlow), 
and he gave entire satisfaction to his employers. His 
maiden speech was made in support of the bill for con- 
tinuing martial law in Ireland, which gave courts martial 
jurisdiction over all offenses, with a power of life and 
death. He contended that " this measure had led to 
the extinction of rebellion in that country, and that to 
its operation the House owed their power of debating 
at that moment, for without it the whole empire would 
have been involved in one common ruin. The aspect of 
the late rebellion he conceived to be unequalled in the 
history of any country ; never before had rebellion so 
aimed at the destruction of all that is venerable in 
political institutions or sweet in domestic life — of all the 
social affections which unite man to man — of all the 
sacred sanctions which bind man to his Maker." ' Coer- 
cive measures for Ireland are always well relished in the 
House of Commons, and, on a division, eight only 
mustered in the minority. 

Mr. Attorney next argued the necessity for suspend 
ing the Habeas Corpus Act in England, asserting tha' 
the constitution of the country would not be safe if the 
bill which was now moved for were not passed. He said 
" he would maintain that it was a most lenient measure, 
and particularly to those against whom it was intended. 
To prevent an outbreak of treason, was mercy to the, 
traitors. Because crimes were not judicially proved, 
their existence must not be denied. Had it not been 
for subsequent events, the acquitted and sainted Arthur 
O'Connor, long the idol of the other side of the House, 
now confessinp- his guilt — who had been so lauded as to 
cause unJ»'";iai nausea — would have gone to his grave 
loaded with the unmixed praises of his compurgators." ' 
The minority now amounted to forty-two. 

When the Rev. John Home Tooke was nominated as 

member for the borough of Camelford, the question arose 

whether a priest in orders was qualified to sit in the 

House of Commons? Mr. Attorney learnedly argued 

' 35 Pari. Hist 1044. ' lb. 1288. 



i8o2.] LORD ELLENBOROUGH. 155 

for the negative, and zealously supported the bill to pre- 
vent such an occurrence in future. Mr. Home Tooke 
had his revenge, and excited a laugh at the dogmatizing 
method of his opponent, which he pronounced to be " only 
fit for the pulpit, so that an exchange might advanta- 
geously be made between the Law and the Church." ' 

Sir Edward's last speech in the House of Commons 
was on the claim made by the Prince of Wales against 
the King for an account of all the revenues of the Duchy _ 
of Cornwall during his Royal Highness's minority. The J 
ground taken by him was, that the King had a set-off , 
for his Royal Highness's board and education, which ' 
overtopped the demand. " Can it be contended," said 
he, " that the Prince of Wales, after having been main- 
tained one-and-twenty years in all the splendor be- 
coming his elevated rank, may at last call the King to 
an account for all the money received for that purpose 
during his minority ? The Duchy of Cornwall was 
granted by Edward HI. to his son, that he himself 
might be relieved from the burden which had previously 
been thrown upon him and other Kings of maintaining 
their heirs at their own expense. It has been clearly 
shown that the money advanced to this Prince of Wales 
■during his minority exceeds all his revenues, and that 
the balance is against him. The elegant accomplish- 
ments and splendid endowments of this ' Hope of Eng- 
land' prove that he has experienced the highest degree 
of parental care, tenderness, and liberality." " This con- 
troversy, though often renewed, was never brought to a 
final decision; but the arguments seem conclusively to 
prove that the revenues of the Duchy of Cornwall be- 
long to the Prince of Wales during his minority, and 
that he is entitled to an account of them on his coming 
of age. 

The negotiations for a peace with Napoleon as First 
Consul of the French Republic were now going on, and 
parliamentary strife was allayed till the result should be 
known, all parties agreeing that in the mean time no at- 
tempt should be made to subvert the government of 
Mr. Addington. Before this event Sir Edward Law was 
transferred to another sphere of action. 

' 2--, Pari. Deb. 1335— 1398. « 36 Pari. Hist. 433. 



156 REIGN OF GEORGE III. [1S02- 

During the short period of his Attorney Generalship 
no prosecution for treason or any political offense arose, 
but in his official character he did conduct one of the 
most nnennorable prosecutions for murder recorded in 
our judicial annals. It brought great popularity to him 
and the Government of which he was the organ, upon 
the supposition that it presented a striking display of 
the stern impartiality of British jurisprudence; but after 
a calm review of the evidence I fear it will rather be 
considered by posterity as an instance of the triumph 
of vulgar prejudice over humanity and justice. The al- 
leged crime had been committed twenty years before the 
trfal, and, except in the case of Eugene Aram, there 
never had been known such an illustration of the doc- 
trine of our law, that in criminal matters no lapse of 
time furnishes any defense, while all civil actions are 
barred by short periods of prescription ; upon the sup- 
position that the evidence may have perished which 
might have proved the charge to be unfounded. JO- 
SEPH Wall, who had served from early youth as an 
officer in the army, and had always been distinguished 
for gallantry and good conduct, was, during the Ameri- 
can War, appointed Governor of Goree, on the coast of 
Africa. With a very insufficient garrison, and with very 
slender military supplies, he had to defend this island 
from the French, who planned expeditions against it 
from their neighboring settlement of Senegal. Governor 
Wall performed his duty to his country in the midst of 
formidable difficulties, with firmness and discretion — and 
the place intrusted to him was safely preserved from all 
perils till peace was re-established. He was then about 
to return home, in the expectation of thanks and pro- 
motion, but great discontents existed among the troops 
forming the garrison, by reason of their pay being in ar- 
rear. This grievance they imputed to the Governor, and 
they resolved that he should not leave the island till they 
were righted. Benjamin Armstrong, a sergeant, their 
ringleader, was brought by him irregularly before a regi- 
mental court martial, and sentenced to receive eight 
hundred lashes. Although this whipping was adminis- 
tered with much severity, he in all probability would 
have recovered from it if he had not immediately after 



iSoi.J LORD ELLENBOROUGH. 



157 



•drunk a large quantity of ardent spirits ; but his intem- 
perance, together with the wounds inflicted upon him by 
the flagellation, and an unhealthy climate, brought on 
inflammation and fever, of which hp died. Order was 
restored, and the Governor returned to England. How- 
ever, representations were made to the authorities at 
home respecting the irregularity and alleged cruelty 
which had been practiced, and exaggerated accounts of 
the proceeding were published in the newspapers, stating 
among other things that the Governor had murdered 
Armstrong and several others by firing them from the 
mouths of cannon. A warrant was issued against him 
by the Secretary of State ; he was arrested by a King's 
messenger, and he made his escape as they were convey- 
ing from Bath in a, chaise and four. He immediately 
went abroad, and he continued to reside on the conti- 
nent till the peace of Amiens — when, on the advice of 
counsel, he came to England, wrote a letter to the Sec- 
retary of State announcing his return, and surrendered 
himself to take his trial. 

I am old enough to remember the unexampled excite- 
ment which the case produced. The newspapers were 
again filled with the unexampled atrocities of Governor 
Wall, and a universal cry for vengeance upon him was 
raised. Among the higher and educated classes a few 
individuals, who took the trouble to inquire into the 
facts, doubted whether he was liable to serious blame, 
notwithstanding the circumstance against him that he 
had fled from justice; but the mass cf the population, 
and particularly the lower orders, loudly pronounced 
Governor Wall guilty before his trial, and clamored for 
his speedy execution. 

The trial (if trial it may be called) did come on at the 
Old Bailey on the 20th of January, 1802, under a special 
commission, issued by the authority of 33 Hen. VIH., 
c. 23. The Attorney General, who appeared as public 
prosecutor, was conscientiously convinced of the pris- 
oner's guilt, and, free from every bad motive, was only 
desirous to do his duty. He propounded the law of 
-nurder very correctly to the jury, and I cannot say that 
he suppressed any evidence, or put any improper ques- 
tion to any witness, but he showed a determined resolu- 



15S REIGN OF GEORGE III. [.1802 

tlon to convict the prisoner. I should not- like to be 
answerable for such a conviction. 

Then a very young man, just entered at Lincoln's Inn, 
I was present at the trial, and, carried away by the prev- 
alent vengeful enthusiasm, I thought that all was right; 
but after the lapse of half a century, having dispassion- 
ately examined the whole proceeding, I come to a very 
different conclusion. 

I have now a lively recollection of the effect produced 
by the opening speech of the Attorney General, to 
which, as the law then stood, no answer by counsel was 
permitted. With professions of candor he narrated the 
facts in a tone of awful solemnity, so as to rouse the in- 
dignation of the jury. He particularly dwelt upon the 
fact, that the men employed to inflict the punishment 
were not the drummers of the regiment, but African 
negroes, and he pronounced the punishment wholly 
illegal, as the sentence could only have been passed by 
a general court-martial, assembled according to the 
"Articles of War." He allowed, indeed, that if there 
was a dangerous mutiny, all forms might be dispensed 
with, but insisted that the onus lay on the prisoner to 
make this clearly out ; and, by anticipation, he sought 
to discredit the witnesses to be called for the defense. 
He dwelt with much force upon the circumstances that 
a dispatch written by the prisoner, soon after his return 
to England, to Lord Sidney, the Secretary of State, was 
silent as to the supposed mutiny; he palliated the reso- 
lution of the soldiers not to permit the Governor to 
leave the island till their arrears were paid, by observing 
that, " after his departure, a vast ocean would separate 
them from their debtor, and considering the precarious- 
ness of human life, and particularly in that unhealthy 
settlement, if they did not press their demands at that 
period, it was possible they might not be in a situation 
afterwards to urge it with any beneficial effect to them- 
selves." These were the conditions on which it was 
said by the Attorney General the prisoner was entitled 
to an acquittal : " It will be incumbent on him to show 
the existence of crime in the alleged mutineer, the im- 
possibility of regular trial, and the reasonable fitness of 
the means substituted and resorted to in the place of 



£8o2.J LORD ELLENBOROUGH. 159 

trial. All- these things it will be incumbent on the 
prisoner to prove. It may likewise be proper for him, 
in further exculpation of his conduct, to show how 
he withdrew himself from justice at the time when he 
was first apprehended ; for it should seem that if he was 
an innocent man, this was above all others the con- 
venient time to prove his innocence. It will give me 
great satisfaction if he is able to establish that there 
existed such circumstances as will make the crime with 
which he is charged not entitled to be denominated and 
considered as murder." 

The witnesses for the prosecution represented that 
when Armstrong and his associates came up, demanding 
their arrears, they were unarmed, and that they returned 
to their quarters when ordered to do so by the Gov- 
ernor, so that no extraordinary measures of severity 
were necessary ; but they admitted that the sentence 
had been pronounced by a drumhead court martial, 
which the Governor summoned, and they admitted that 
although where a mutiny is made the subject of inquiry 
by a general court martial, it is officially returned ; if a 
mutiny is repressed at the instant, and a drumhead court 
martial is held, it is not returned if the punishment be 
short of death. No attempt was made to show that the 
prisoner had any spite against Armstrong, or that he 
was actuated by any improper motive. 

When called upon for his defense, Governor Wall con- 
fined himself to a simple narrative, which, if true, showed 
that Armstrong had been guilty of most culpable con- 
duct, and that after he had led back the men to their 
quarters he still entertained very dangerous designs. 

Mrs. Lacy, the widow of the succeeding Governor, who 
had been second in command when the affair happened, 
stated on her oath that Armstrong and the seventy 
soldiers he led on threatened Governor Wall, and swore 
that if he did not satisfy their demands they would 
break open the stores and satisfy themselves. She was 
strongly corroborated by eye-witnesses respecting the 
dangerous character of the mutiny, and by the opinion 
of the other officers in the garrison, that extraordinary 
measures must immediately be taken to repress it. 
Several general officers who had known the prisoner all 



i6o REIGN OF GEORGE III. [1S02. 

his life, and other respectable witnesses, gave him a high 
character for good temper and humanity. But one of 
them being cross-examined on the subject by the At- 
torney General, said that '" he had not heard this char- 
acter of him on the island of Goree," and a witness 
called in reply to say that a witness examined for the 
prisoner ought not to be believed on his oath, said that the 
prisoner's witness was "reckoned a lying, shuffling fellow." 

The jury, after half an hour's deliberation, returned a 
verdict of Guilty, which was received with loud acclama- 
tion, and, according to the law as it then stood, the sen- 
tence of death,- which was immediately passed, was or- 
dered to be carried into execution on the 5econd day 
after the trial. 

Not withstanding the general satisfaction testified, 
many were shocked by this proceeding, and petitions 
for mercy were presented to the King. The case being 
examined by Lord Eldon, and other members of the 
Government, there was a sincere desire among them to 
save the unfortunate gentleman, and a respite for two 
days was sent to give time for further deliberation — but 
there arose such a burst of public resentment as was 
never known on such an occasion in this country. Still 
a further respite was granted for three days more, in 
the hope that reason and humanity might return to the 
multitude. On the contrary, an open insurrection was 
threatened, and it was said that the common soldiers 
and non-commissioned officers of the three regiments 
of Guards, who would have been called in to quell it, 
had declared that they ■yould join the rioters, and assist 
with their own hands in executing the sentence of law 
on the murderer of Sergeant Armstrong. The Govern- 
ment had not the courage to grant a further respite, and 
Governor Wall was hanged on a gibbet in front of the 
jail at Newgate, amidst the shouts and execrations ot 
the most numerous mob that ever assembled in England 
to witness a public execution.' 

' 28 St. Tr. 51-17S. A writer, who highly approves of the execution of 
Governor Wall, says, " His inhuman cruelties had so hardened the multi- 
tude, that they hailed with exulting shouts his appearance on the scaffold, 
and triumphed in the knowledge that neither station, nor lapse of time, nor 
distance, would shield a convicted murderer from his just doom." — Towb.s- 
■end's Judges, vol. i. 328. 



t8o2.] LORD ELLENBOROUGH. i6i 

Sir Edward Law was now a good deal disturbed by 
the near prospect of a vacancy in the office of Chief 
Justice of the King's Bench. Lord Kenyon, having 
made a vain effort to discharge the judicial duties in the 
beginning of Hilary Term, had been ordered by his 
physician to Bath, and from the accounts of his declin- 
ing health, it was well understood that he could never 
sit again. The peace with France being approved of 
in both Houses, the Catholic question having gone to 
sleep, the King's health being restored, and Mr. Adding- 
ton's Government being stronger than any one ever ex- 
pected to see it, Sir Edward Law would not have been 
sorry to have continued in the office of Attorney Gen- 
eral, but he could not bear the idea of any one being 
put over his head, and rumors reached him that as he 
could not have been considered to have won a right to 
the office of Chief Justice, from having served only a 
few months as a law officer of the Crown, it was to be 
conferred on Erskine, who, since the peace, had been 
coquetting with the new Prime Minister. I happened 
to be sitting in the student's box in the Court of King's 
Bench, on the 5th of April, 1802, when a note announcing 
Lord Kenyon's death was put into the Attorney Gen- 
eral's hand. I am convinced that at this time he had 
received no intimation respecting the manner in which 
the vacancy was to be filled up, for he looked troubled 
and embarrassed, and immediately withdrew. 

He did not again appear in Court till the 12th of 
April, when he was sworn in and took his seat as Chief 
Justice.' Mr. Addington had the highest opinion of 
him, and never had hesitated about recommending him 
for promotion. On going home from the Court, after 
hearing of Lord Kenyon's death, Mr. Attorney found a 
letter from the Prime Minister, announcing that the 
King would be advised to appoint him, and expressed 
a confident belief that "when the royal pleasure was 
taken his Majesty would willingly sanction an appoint- 
ment likely to be so conducive to the upright and en- 
lightened administration of justice to his subjects." 
Immediately after Lord Kenyon's funeral, the King's 
pleasure was formally taken, with the anticipated result, 
' 2 East, 253. 

IV. — II 



1 62 REIGN OF GEORGE III. [1802. 

and his Majesty cordially agreed to the proposal that 
the new Chief Justice should be raised to the peerage. 

It was first necessary that he should submit to the 
degree of the coif, only sergeants-at-law being qualified 
to preside in the King's Bench, or to be Judges of As- 
size. In conapliment to the peace concluded by his 
patron with the First Consul of the French Republic, he 
took for the motto of his rings, 

" Positis mitescunt secula bellis." 

For his barony he chose from a small fishing village on 
the coast of Cumberland, a sounding title, to which there 
could be no objection, except that having very often 
officially to sign it, he was forced afterwards to write 
many millions of large characters, beyond what would 
have been necessary if he had been contented with a 
word of two syllables, without any unphonetic con- 
sonants.' 

' At Ellenborough there is a small estate which had been in his mother's 
family since the reign of Henry II., and it was supposed that he was partly 
induced to take this title as a mark of respect to her memory. 




CHAPTER XLIX. 

CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH 
TILL HE BECAME A CABINET MINISTER. 

LORD ELLENBOROUGH'S appointment was 
generally approved of, and he had the felicity of 
being promoted without the hostility of an effete 
predecessor, or the grudge of a disappointed rival, or 
the envy of contemporaries whom he had surpassed. 

His professional qualifications were superior to those 
of any other man at the bar. Having an excellent head 
for law, by his practice under the bar he was familiarly 
versed in all the intricacies of special pleading; although 
not equally well acquainted with conveyancing, he had 
mastered its elements, and he could pro re nata ade- 
quately understand and safely expatiate upon any point 
of the law of real property which might arise. He was 
particularly famous for mercantile law ; and a thorough 
knowledge of the rules of evidence, and of the princi- 
ples on which they rested, made his work easy to him at 
nisi prius. Not only had he the incorruptibility now 
common to all English Judges, but he was inspired by a 
strong passion for justice, and he could undergo any de- 
gree of labor in performing what he considered his duty. 
He possessed a strong voice, an energetic manner, and 
all physical requisites for fixing attention and making 
an impression upon the minds of others. I must like- 
wise state as a great merit that he could cope with and 
gain an ascendency over all the counsel who addressed 
him, and that he never had a favorite ; dealing out with 
much impartiality his rebuffs and his sarcasms. The de- 
fects in his judicial aptitude were a bad temper, an ar- 
rogance of nature, too great a desire to gain reputation 



i64 REIGN OF GEORGE III. 

by despatch, and an excessive leaning to a severity of 
punishment. 

He did not by any means disappoint the favorable an- 
ticipations of h's friends, although the blemishes were 
discoverable which those dreaded who had more closely 
examined his character. The day when he took his seat 
in court as Chief Justice, he said privately to an old 
friend that " his feelings as a barrister had been so often 
outraged by the insults of Lord Kenyon, he should now 
take care that no gentleman at the bar should have oc- 
casion to complain of any indignity in his court, and 
that he hoped any one who thought himself ill-used 
would resent it." Yet before the first term was over, he 
unjustifiably put down a hesitating junior, and ever after 
he was deeply offended by any show of resistance to his 
authority. By good fortune he had very able puisnes, so 
that the decisions of the Court of King's Bench while he 
was Chief Justice are entitled to the highest respect. 
Grose was his coadjutor of least reputation ; but this 
supposed weak brother, although much ridiculed,' when 
he differed from his brethren, was voted by the profes- 
sion to be in the right. All the others— Lawrence, Le 
Blanc, Bayley, Dampier, Abbott, Holroyd — were among 
the best lawyers that have appeared in Westminster 
Hall in my time. It was a great happiness to practice 
before them, and I entertain a most affectionate respect 
for their memory. 

Lord Ellenborough did not attempt to introduce any 
reform in the practice of his court, or in the preparation 
of the preliminary pleadings. The writ of Latitat was 
still as much venerated as the writ of Habeas Corpus, 
and all the arbitrary and fantastic rules respecting declar- 
ations, pleas, replications, rejoinders, surrejoinders, re- 
butters and surrebutters, which had arisen from accident 
or had been devised to multiply fees, or had been prop- 
erly framed for a very different state of society, were 
still considered to be the result of unerring wisdom, and 
eternally essential to the administration of justice. An- 

' " Qualis sit Grocius Judex uno accipe versu ; 
.Exclamat, dubitat, balbutit, stridet et errat." 

" Grocius witli his lantern jaws 
Throws light upon the English laws." 



TORD ELLENBOROUGH. 165 

tiquity was constantly vouched as an unanswerable de- 
fense for doctrines and procedure which our ancestors, 
could they have been summoned from their graves, 
would have condemned or ridiculed. One obstacle to 
legal improvement, now removed, then operated most 
powerfully, though insensibly — that antiquated juridical 
practice could not be touched without diminishing the 
profits of offices which were held in trust for the Judges, 
or which they were permitted to sell.' The grand foun- 
dation of legal improvement was the bill for putting all 
the subordinate officers in the courts at Westminster, as 
well as the Judges, on a fixed salary — allowing fees of 
reasonable amount to be paid into the public treasury 
towards the just expenses of our judicial establishment. 
The Benthamites would go still further and abolish court 
fees altogether; but there seems no hardship in the gen- 
eral rule that the expense of litigation shall be thrown 
upon the parties whose improper conduct must be 
supposed to have occasioned it. Arbitrators are paid 
by the party found to be in the wrong, and the bur- 
den of maintaining the Judges appointed by the State 
ought not to be borne by those who habitually obey 
the law, and spontaneously render to every man his own. 
Upon the accession of Lord Ellenborough, the absurd 
doctrines about forestalling and regrating were under- 
stood, like prosecutions for witchcraft, to be gone for 
ever, on account of the manly stand he had made against 
them under Lord Kenyon, and there has not since been 
any attempt to revive them. The internal free trade in 
corn was thus practically secured, although the doctrine 
that free importation of corn ought to be allowed from 
foreign countries did not follow for near half a century, 
and Lord Ellenborough himself would probably have 
regarded with as much horror such an importation, as did 
his predecessor a corn-merchant buying wheat at Ux- 
bridge to be resold in Mark Lane. 

' I never saw this feeling at all manifest itself in Lord Ellenborough 
except once, when a question arose whether money paid into Court was 
liable to poundage, I was counsel in the cause, and threw him into a 
furious passion by strenuously resisting the demand. The poundage was 
to go into his own pocket — being payable to the chief clerk — an office 
held in trust for him. If he was in any degree influenced by this con- 
sideration, I make no doubt that he was wholly unconscious of it. 



1 66 REIGN OF GEORGE III. 

I do not think that on any other subject the princi- 
ples were altered by which the Court of King's Bench 
now professed to be guided. Lord Ellenborough ad- 
hered to the rule that in ejectment the legal estate shall 
always prevail, and that an outstanding term might be 
set up unless it might be fairly presumed to be extin- 
guished or surrendered, or the defendant vas estopped 
from contesting the title of the claimant. A more lib- 
eral and scientific mode, however, was restored of treat- 
ing commercial questions, the civil law and foreign ju- 
rists were quoted with effect, and the authority of Lord 
Mansfield was again in the ascendant. 

Chief Justice Ellenborough's judgments connected 
with politics and history I propose hereafter to in- 
troduce chronologically as I trace his career after he 
mounted the bench. At present I think it may be conve- 
nient to mention some of the more important questions 
before him, which derive no illustration or interest from 
the time they arose, or from any concomitant events. 

In now looking over the bulky volumes of " East" 
and of " Maule and Selwyn," it is wonderful to observe 
how many of the decisions which they record may al- 
ready be considered obsolete. A vast majority of them 
are upon rules of practice and pleading, since remodeled 
under the authority of the legislature — upon Sessions' 
law respecting settlements, rating, and bastardy, which 
has been entirely altered by successive statutes — upon 
the Quo Warranto law, swept away by the Parlia- 
mentary Reform Act and the Municipal Corporations' 
Amendment Act — upon the law of tithes, abolished by 
the Tithe Commutation Act — and upon concerted com- 
missions of bankruptcy and the validity of petitioning 
creditors' debts, which have become immaterial by the 
new Bankrupt and Insolvent Codes. 

I proceed to select a few cases, decided by Lord El- 
lenborough, which depend upon the common law and 
the eternal principles of right and wrong, and which 
must ever be interesting and instructive to those who 
wish to have a liberal knowledge of our jurisprudence. 

In Rodney v. Chambers' the important question arose 
upon the legality of a covenant by a husband, who had 
' 2 East, 283. 



LORD ELLENBOROUGH. 167 

been separated from his wife and had been reconciled 
to her, to pay a certain sum of money annually to trus- 
tees for her support in case of a future separation. His 
counsel contended that such a covenant was contrary 
to public policy, as tending to encourage the wife to 
leave her husband, and to disturb the harmony of con- 
jugal life. 

Lord Ellenborough : " I should have thought that it 
would have fallen in better with the general policy of 
the law to have prohibited all contracts which tend to 
facilitate the separation of husband and wife ; but we 
cannot reject the present on that ground without saying 
that all contracts which have the same tendency are 
vicious — which would extend, for aught I can see, to 
provisions for pin-money or any other separate provi- 
sion for the wife, which tends to render her independent 
of the support and protection of her husband. Deeds 
of separation are not illegal, and I cannot see how it is 
more illegal to provide for future than for present sepa- 
ration." \_Judgment against the husbandl\ 

Whether in consequence of this deed, or from some 
other cause, the wife soon after separated from her hus- 
band and had an affair of gallantry with a military 
officer. An action for crim. con. being brought, the 
defense was set up that the plaintiff had voluntarily re- 
nounced the society of his wife, and therefore that this 
action could not be maintained, the gravemen of which 
is the per quod consortium amisit ; but Lord Ellen- 
borough held that although the husband had made a 
provision for his wife's separate maintenance, he could 
not be said to have given up all claim to her society and 
assistance, and that he sustained an injury from the 
adultery which brought disgrace upon his name, and 
might introduce a spurious progeny into his family.' 

In Parkinson v. Lee," in contradiction to the loose 
maxim that on the sale of goods a sound price implied 
a warranty of a soundness. Lord Ellenborough, with the 
rest of the Court, decided that upon a sale of hops, how- 
ever high the price might be, there was no implied war- 
ranty that the commodity should be merchantable, and 

' Chambers v. Caulfield, 6 East, 244. « 2 East, 314. 



1 68 REIGN OF GEORGE III. 

that in the absence of fraud the governing maxim i.' 
caveat emptor. 

Mr. Justice Johnson, an Irish Judge, having been in- 
dicted in the Court of King's Bench at Westminster for 
publishing in the county of Middlesex a libel on Ear) 
Talbot, the Lord Lieutenant of Ireland, and having 
pleaded in abatement that as he had been born, and 
had constantly resided in Ireland, he was only liable to 
be tried in the courts of that country. Lord Ellen- 
borough, in a very elaborate judgment, overruled the 
plea, thus concluding: — 

"If the circumstances of the defendant's birth in Ire- 
land and his residence there at the time of the publica- 
tion here, have the effect of rendering him not punish- 
able in any court in this country for such publication, 
this impunity must follow as a consequence from its 
being no crime in the defendant to publish a libel in 
Middlesex. Indeed, the argument rests wholly upon 
this position, that the defendant owed no obedience to 
the laws of this part of the United Kingdom, so that be 
has not been guilty of any crime in breaking them. The 
learned Judge lays down for law that if he remains in 
Dublin, he may by means of a hired assassin commit a 
murder in London without being liable to punishment." 

The indictment being tried at the bar, the libelous 
letters published in Cobbett\s Political Register were 
proved to be in the handwriting of the defendant, with 
the Dublin post-mark upon them. They were addressed 
to the editor of the Register in Middlesex, and they con- 
tained a request that he would print and publish them. 
The defendant's counsel insisted that he was entitled to 
an acquittal on the ground that the evidence was de- 
fective. 

Lord Ellenborough : " There is no question of the fact 
of publication by Mr. Cobbett, in Middlesex, of that 
which is admitted to be a libel ; and the only question is. 
whether the defendant was accessory to that publication ? 
If he were, the offense is established ; for one who pro- 
cures another to publish a libel, is no doubt guilty of the 
publication, in whatever county it is in fact published, 
in consequence of his procurement." 



I79S] LORD ELLENBOROUGH. 169 

The other Judges concurred, and the defendant was 
found GUILTY." 

The Government of the United States of America 
having in the year 1808 laid an embargo in American 
ports on all American ships bound for Great Britain, the 
owners, who were insured in England, gave notice of 
abandonment to the underwriters, and claimed a total 
loss. Lord Ellenborough acquired great glory by boldly 
deciding that, under these circumstances, the English 
underwriters were not liable. He proceeded on this 
maxim, that a party insured can never recover for a loss 
which he himself has occasioned, and he laid down that 
under every form of government each subject or citizen 
must be considered as concurring in every act of the 
supreme power of the country in which he lives : — 

" The foundation of the abandonment is an act of the 
American Government. Every American citizen is a 
party to that act ; it has virtually the consent and con- 
currence of all, and, amongst the rest, the consent and 
concurrence of the assured. The assured having pre- 
vented the vessels from sailing, can they make the 
detention of the vessels the foundation of an action ? " " 

Where a marriage had been regularly celebrated by a 
priest in orders, in the face of the church, between a man 
of full age and a woman under age, who was illegitimate, 
with the consent of her mother, the father being dead, 
and they have lived together as man and wife for many 
years, Lord Ellenborough decided (I think erroneously, 
although he had the concurrence of two able Judges, 
Le Blanc and Bayley) that the marriage was void and 
their children were bastards, because the Court of Chan- 
cery had not appointed a guardian to the minor, to 
consent to the marriage. This most revolting decision 
might have been avoided by holding on the true principles 
for construing statutes, that although Lord Hardwicke's 
Act (26 George IL c. 33) says that all marriages not 
solemnized in the manner therein mentioned shall be 
void, this nullification applies only to the marriages of 
persons in the contemplation of the legislature, and that 
the marriages of illegitimate minors could not have 
been in the contemplation of the legislature with respect 

' 6 East, 583 ; 7 East, 65. " 10 Ea.st, 536. Conway v. Gray. 



170 REIGN OF GEORGE III. 

to this consent, as the condition requiring the consent of 
parents or guardians could not be fulfilled — so that this 
being casi.s omissus, the marriage in question was valid. 
But Lord Ellenborough's nature was somewhat sterji, 
and he did ncrt dislike a judgment that others would 
have found it painful to pronounce — rather rejoicing in 
an opportunity of showing that he was not diverted by 
any weak sympathies from the upright discharge of his 
duty.' 

However, he was always eager to extend the protec- 
tion of British law to all who were supposed to be op- 
pressed. Upon an affidavit that an African female, 
formed in a remarkable manner, was exhibited in Lon- 
don under the name of the HOTTENTOT VENUS, the de- 
ponents swearing that they believed she had been 
brought into this country and was detained here against 
her will, he granted a rule to show cause why a writ of 
habeas corpus should not issue to her keepers to produce 
her in court, and that in the mean time the Master of 
the Crown-office and persons to be appointed by him 
should have free access to her: 

At Venus setherios inter Dea Candida nimbos 
Dona ferens aderat. 

She appeared before the master and his associates 
magnificently attired, offered them presents, and de- 
clared that she came to and remained in this country 
with her free will and consent. A report to this effect 
being made to the Court, Lord EUenborough said, 
" We have done our duty in seeing that no human being, 
of whatever complexion or shape, is restrained of liberty 
within this realm. Let the rule be discharged."" 

One of the most important questions which arose in 
the Court of King's Bench, while Lord EUenborough 
was Chief Justice, was, whether the captain of a man-of- 
war be liable to an action for damage done by her in 
running down another vessel, without proof of any per- 
sonal conduct or default? An award had been made 
against him by a legal arbitrator, who set out the facts 
on the face of this award for the opinion of the Court. 

■ Priestly v. Hughes, ii East, i. Mr. Justice Gross dissented ; the de- 
cision was condemned by Westminster Hall, and finally the law was rectified 
by the Legislature. 4 Geo. IV. c. 76 ; 6 and 7 Wm. IV. c. 85 

' Hottentot Venus's Case, 13 East, 3S4. 



LORD ELLENBOROUGH. 171 

_ Lord Ellenboroiigh : "Captain Mouncey is said to be 
liable for the damages awarded in this case, by consider- 
ing him in the ordinary character of master of the ship 
by means of which the injury was done. But how was 
he master? He had no power of appointing the officers 
or crew on board ; he had no power to appoint even 
himself to the station which he filled on board ; he was 
no volunteer in that particular station, by having en- 
tered originally into the naval service ; he had no choice 
whether he would serve or not with the other persons 
on board, but was obliged to take such as he found there 
and make the best of them. He was the King's servant 
stationed on board this ship to do his duty there, to- 
gether with others stationed there by the same authority 
to do their several duties. How, then, can he be liable 
for their misfeasance any more than they for his?" 
[Award set aside I^ 

The only occasion when Lord Ellenborough was ever 
seriously supposed to be swayed by his own interest, 
was in deciding whether sailors employed in the lobster 
fishery were privileged from being pressed into the 
Royal Navy. He had an extreme love of turbot, with 
lobster sauce, and although sailors employed In the deep- 
sea fishing, where turbots are found, were allowed to be 
privileged from impressment, the Admiralty had issued 
orders for impressing all sailors employed in collecting 
lobsters on the rocks and bringing them to Billingsgate. 
Writs oi habeas corpus having been granted for the pur- 
pose of discharging several who had been so impressed, 
the counsel for the Crown argued strenuously that upon 
the just construction of 2 Geo. HI. c. 15, and 50 Geo. 
in. 108, they were not entitled to any exemption, not 
being engaged in the deep-sea fishing. 

Lord Ellenborough : " I think the policy of the legis- 
lature seems to have been directed to the better supply- 
ing the inhabitants of the metropolis and other parts 
of the kingdom with fish, and for that purpose to bring 
sound and well-flavored fish to our markets at a moder- 
ate price. It is contended, however, that the protection 
extends only to those who are engaged in fishing in 
deep waters, and that lobsters are found in shallow 

' Nicholson V. Mouncey, 15 East, 3SJ. 



172 REIGN OF GEORGE III. 

waters. Stat. 50 Geo. III. c. 108, does in its preamble 
recite that ' various sorts of fish do in the winter retire 
into the deep water, and that for the supply of the me- 
tropoHs a large class of fishing-boats, which cannot be 
navigated without additional hands, must be employed, 
bur it enacts, ' that every person employed in the 
fisheries of these kingdoms shall be exempt from being 
impressed.' Then is not the lobster fishery a fishery, 
and a most important fishery, of this kingdom, though 
carried on in shallow water? The framers of the law 
well knew that the produce of the deep sea, without the 
produce of the shallow water, would be of comparatively 
small value, and intended that the turbot, when placed 
upon our tables, should be flanked by good lobster- 
sauce. ' Fisheries of these kingdoms' are words of a 
large scope, embracing all those fisheries from which fish 
are supplied in a fresh and wholesome state to the 
markets of these kingdoms, all who are engaged in such 
fisheries are within the equity of the Act. Let the rule 
be absolute." ' 

In Chamberlain v. Williamson,' the curious question 
arose whether the personal representative of a young 
lady who had died, being forsaken by her lover who had 
promised to marry her, could maintain an action against 
him for breach of the promise to marry. The plaintiff 
had recovered a verdict with large damages, but a motion 
was made in arrest of judgment. 

Lord EllenborougJi : " The action is novel in its kind, 
and not one instance is cited or suggested in the argu- 
ment of its having been maintained, nor have we been 
able to discover any by our own researches and inquiries ;. 
and yet frequent occasion must have occurred for bring- 
ing such an action. However, that would not be a de- 
cisive ground of objection if, on reason and principle, it 
could strictly be maintained. The general rule of law is 
actio personalis moritur cum persond ; under which rule 
are included all actions for injuries merely personal. 
Executors and administrators are the representatives of 
the temporal property, that is, the goods and debts of 
the deceased, but not of their wrongs, except where 

' See Payne and Thoroughgood's Cose, I M. and S. 223. 
' 2 M. and S. 409. 



LORD ELLENBOROUGH. 173 

those wrongs operate to the temporal injury of their 
personal estate. If this action be maintainable, then 
every action founded on an implied promise to a testator, 
where the damage subsists in the previous personal suf- 
fering of the testator, would also be maintainable by the 
executor or administrator. All actions affecting the life 
or health of the deceased ; all such as arise out of the 
unskillfulness of medical practitioners ; the imprisonment 
of the party brought on by the negligence of his at- 
torney ; all these would be breaches of the implied 
promise by the persons employed to exhibit a proper 
portion of skill and attention. Although marriage may 
be considered as a temporal advantage to the party, as 
far as respects personal comfort, still it cannot be con- 
sidered in this case as an increase of the individual 
transmissible personal estate, but would operate rather 
as an extinction of it. We are of opinion that this judg- 
ment must be arrested." 

An action being brought by the Earl of Essex against 
the Honorable and Reverend Mr. Capel, which charged 
that the defendant had committed a trespass in breaking 
and entering his grounds, called Cashiobury Park, and 
with horses and hounds destroying the grass and herbage, 
and breaking down his fences, the defendant justified, 
that the fox being a noxious animal and liable to do 
mischief, he, for the purpose of killing and destroying 
him, and as the most effectual means of doing so, broke 
and entered the park with hounds and horses, and hunted 
the fox. Replication, that this object was — not to 
■destroy the fox, but the amusement and diversion af- 
forded by the chase. After two witnesses had been 
examined. Lord Ellenborough interrupted the further 
progress of the case : — 

"This is a contending against all nature and con- 
viction. Can it be supposed that these gentlemen hunted 
for the purpose of killing vermin, and not for their own 
diversion? Can the jury be desired to say, upon their 
oaths, that the defendant was actuated by any other 
motive than a desire to enjoy the pleasures of the chase ? 
The defendant says that he has not committed the tres- 
pass for the sake of the diversion of the chase, but as the 
only effectual way of killing and destroying the fox. 



17-1 REIGN OF GEORGE III. 

Now, can any man of common sense hesitate in saying 
that the principal motive was not the killing vermin, but 
the sport ? It is a sport the law of the land will not 
justify, without the consent of the owner of the land, 
and I cannot make a new law accommodated to the 
pleasures and amusements of these gentlemen. They 
may destroy such noxious animals as are injurious to the 
commonwealth, but the good of the public must be the 
governing motive." 

Nor was more countenance shown by the Chief Justice 
to a barbarous sport formerly in great favor with country 
squires, but which the increased refinement of modern 
manners has tended to discourage. He refused to try 
an action for. money had and received for a wager on a 
cock-ftght : — 

" This must be considered a barbarous diversion, which 
ought not to be encouraged or sanctioned in a court of 
justice. I believe that cruelty to these animals, in 
throwing at them, forms part of the dehortatory charge 
of judges to grand juries, and it makes little difference 
whether they are lacerated by sticks and stones,, or by the 
bills and spurs of each other. There is likewise another 
principle on which I think an action on such wagers 
cannot be maintained. They tend to the degradation of 
courts of justice. It is impossible to be engaged in 
ludicrous inquiries of this sort consistently with that 
dignity which it is essential to the public welfare that a 
court of justice should always preserve. I will not try 
the plaintiff's right to recover the four guineas, which 
might involve questions on the weight of the cocks and 
the construction of the steel spurs." ' 

It has long been a disputed question whether the 
consul of a foreign Prince residing in this country, and 
acknowledged as such by our Government, be privileged 
from arrest for debt. A motion was at last made to dis- 
charge out of custody the consul of the Duke of Schles- 
wick Holstien Oldenburg, who had been arrested for a 
debt contracted by him as a merchant in this country : — 

Lord Ellenborough : " Every person who is conversant 
with the history of this country is not ignorant of the 
occasion which led to the passing of the statute 7 Anne. 
' Squires v. Whisken, 3 Camp. 140. 



LORD ELLEXBOROUGH. 175 

c. 12. An ambassador of the Czar Peter had been ar- 
rested, and had put in bail ; and this matter was taken 
up with considerable inflammation and anger by several 
of the European Courts, and particularly by that po- 
tentate. In order to soothe the feelings of these powers, 
the act of parliament was passed, in which it was thought 
fit to declare the immunities and privileges of ambassa- 
dors and public ministers from process, and it was enacted 
'that in case any person should presume to sue forth or 
prosecute any such writ or process, such persons being 
thereof convicted, should be deemed violators of the 
law of nations and disturbers of the public repose, and 
should suffer such penalties and corporal punishment as 
the Lord Chancellor, or the Chief Justice of the Queen's 
Bench or Common Pleas, or any two of them, should ad- 
judge to be inflicted." Thus was conferred a great and 
extraordinary power, which I am glad to think belongs 
in no other instance to those functionaries. The act 
goes on to declare that 'all writs and processes that shall 
in future be sued forth, whereby the person of any am- 
bassador or other public minister of any foreign Prince 
or State may be arrested or imprisoned, shall be deemed 
to be utterly null and void.' Here the question is, if 
this defendant be an ambassador or other public minis- 
ter of a foreign Prince or State? He certainly is a per- 
son invested with some authority by a foreign Prince ; 
but is he a public minister? There is, I believe, not a 
single writer on the law of nations, nor even of those 
who have written looser tracts on the same subject, 
who has pronounced that a consul is eo nomine a public 
minister." 

Having minutely examined the authorities, and pointed 
out that "there was no usage to show that by the lawof 
nations a consul is entitled to any exemption from being 
sued in courts of justice as any ordinary person, a rule 
was pronounced for continuing the defendant in cus- 
tody.' 

Lord Ellenborough, in the great case of Burdett v. 
Abbott,' stoutly maintained the doctrine denied by the 
plaintiff, that the House of Commons has power to im- 
prison for a contempt. Having examined all the au- 
th .'.'eL' cited, he observed, — 

Viveash v. Becker, 3 M. and S. 284. '' 14 East. I. 



176 REIGN OF GEORGE III. 

" Thus the matter stands on parliamentary precedent, 
upon the recognition by statute, upon the continued re- 
cognition of all the Judges, and particularly of Lord 
Holt, who was one of the greatest favorites of the liber- 
ties of the people, and as strict an advocate for the au- 
thority of the common law against the privileges of 
Parliament as ever existed. I should have thought that 
this was a quantity of authority enough to have put this 
question to rest. Why should the House of Commons 
not possess this power? What is there against it? A 
priori, if there were no precedents upon the subject, no 
legislative recognition, no opinions of Judges in favor 
of it, it is essentially necessary to the House of Com- 
mons, and they must possess it ; indeed they would sink 
into utter insignificance and contempt without it. Could 
they stand high in the estimation and reverence of 
the people, if, whenever they were insulted, they were 
obliged to wait the comparatively slow proceedings of 
the ordinary Courts of law for their redress? that the 
Speaker, with his mace, should be under the necessity 
of going before a Grand Jury to prefer a bill of indict- 
ment for an insult offered to the House?" 

He then repelled with indignation the quibbling ob- 
jections made to the form of the warrant, and vindicated 
the right of the officers to break open the outer door 
of the plaintiff's house for the purpose of apprehending 
him. 

But I think he did not lay down with sufficient dis- 
crimination and accuracy the limits within which parlia- 
mentary proceedings may be published without danger 
of an indictment. Mr. Creevey, M. P. for Liverpool, in 
a debate in the House of Commons respecting the col- 
lection of the public revenue, had made a speech in 
which he pointed out some alleged misconduct of an 
Inspector General of Taxes. An inaccurate account of 
this speech having been published, he printed and cir- 
culated a full and correct one. For this he was indicted, 
on the ground that it reflected on the Receiver General, 
and therefore was a libel. His counsel contended that 
he was absolutely entitled to an acquittal on the admis- 
sion made by the prosecution, that the supposed libel 
was a true report of a speech made in the House of 



LORD ELLENBOROUGH. 177 

Commons. This was very properly overruled by Le 
Blanc, J., the presiding Judge, on the authority of the 
conviction and punishment of the Earl of Abingdon, 
who, having quarreled with his steward, made a scurri- 
lous speech against him in the House of j^ords, which he 
maliciously published with intent to defarne him — but 
the learned Judge erroneously (I think) told the Jury 
that " if there was anything in Mr. Creevey's published 
speech v/hich reflected on the prosecutor, the publication 
of it was a misdemeanor." The defendant being found 
Guilty, a motion was made for ^ new trial on the ground 
of misdirection. 

Lord Elleiiborough : " The only question is, whether 
the occasion of the publication rebuts the inference of 
malice arising from the matter of it? We cannot scan 
what the defendant said within the walls of the House 
of Commons ; but has he a right to reiterate these re- 
flections to the public? — to address them as an oratio 
ad populum, in order to explain his conduct to his con- 
stituents? The jury have found that the publication 
was libelous, and I can see no ground for drawing the 
subject again into discussion. 

The rule was refused, and the defendant was sentenced 
to pay a fine of £100 — but if his object bond fide was to 
explain his conduct to his constituents, I think he was 
entitled to a new trial and to an acquittal. 

Lord Ellenborough nobly maintained a freedom of 
literary criticism. Sir John Carr, Knight, a silly author, 
brought an action against respectable booksellers for a 
burlesque upon certain foolish Travels which he had 
given to the world, relying upon a recent decision of 
Lord Ellenborough in Tabbart v. Tipper. 

Lord Ellenborough : " In that case the defendant had 
falsely accused the plaintiff" of publishing what he had 
never published. Here the supposed libel only attacks 
those works of which Sir John Carr is the avowed au- 
thor ; and one writer, in exposing the absurdities and 
errors of another, may make use of ridicule, however 
poignant. Ridicule is often the fittest instrument which 
can be employed for such a purpose. If the reputation 
or pecuniary interests of the party ridiculed suffer, it is 
damnum absque injuria. Perhaps the plaintiff's Tour in 



178 REIGN OF GEORGE HI. 

Scotland is now unsalable ; but is he to be indemnified ^ 
by receiving a compensation in damages fron the person ' 
who may have opened the eyes of the public to the 
bad taste and inanity of his composition? Who prized 
the works of Sir Robert Filmer after he had been re- 
futed by Mr. Locke, but shall it be said that he might 
have maintained an action for defamation against that 
great philosopher, who was laboring to enlighten and to 
ameliorate mankind ? We really must not cramp ob- 
servations upon authors and their works. Every man 
who publishes a book commits himself to the judgment 
of the public, and any one may comment upon his per- 
formance. He may not only be refuted, but turned into 
ridicule if his blunders are ridiculous. Reflection on 
personal character is another thing. Show me any at- 
tack on the plaintiff's character unconnected with his 
authorship, and I shall be as ready to protect him ; but 
I cannot hear of malice from merely laughing at his 
works. The works may be very valuable for anything 
I know to the contrary, but others have a right to pass 
judgment upon them. The critic does a great service 
to society who exposes vapid as well as mischievous 
publications. He checks the dissemination of bad taste, 
and saves his fellow subjects from wasting their time 
and their money upon trash. If a loss arises to the 
author, it is a loss without injury ; it is a loss which the 
party ought to sustain ; it is the loss of fame and profit 
to which he never was entitled. Nothing can be con- 
ceived more threatening to the liberty of the press than 
the species of action before the Court. We ought to 
resist an attempt against fair and free criticism at the 
threshold.'" {^Verdict for the defendants.'] 

A good specimen of Lord Ellenborough's nisi prius 
manner is his opinion upon the question whether a man, 
by nailing to his own wall a board which overhangs his 
neighbor's field, is liable to an action of trespass : — 

" I do not think it is a trespass to interfere with the 
column of air superincumbent on the close of another. 
I once had occasion to rule on the circuit that a man 
who, from the outside of a field, discharged a gun into 
it, so that the shot must have struck the soil, was guilty 

' Carr v. Hood and another, I Campb. 335. 



LORD ELLEN BOROUGH. 179 

of breaking and entering it. A very learned judge, who 
went the circuit with me, having at first doubted the 
decision, afterwards approved of it, and I believe that it 
met with the general concurrence of those to whom it 
was mentioned. But I am by no means prepared to 
say that firing across a field in vacuo, no part of the con- 
tents touching it, amounts to clausum /regit. Nay, if 
this board commits a trespass by overhanging the plain- 
tiff's field, the consequence is that an aeronaut is liable 
to an action of trespass at the suit of the occupier oi 
every house and inch of ground over which his ballooi 
passes in the course of his voyage. Whether the action 
lies or not, cannot depend upon the length of time foi 
which the superincumbent air is invaded. If any damage 
arises from the overhanging substance, the remedy is by 
an action on the case."" 

Peter Hodgson, an attorney, having sued Mr. Scarlett, 
the celebrated counsel (afterwards Lord Abinger and 
Chief Baron of the Exchequer), for speaking these 
words : " Mr. Hodgson is a fraudulent and wicked at- 
torney," it appeared that the words were spoken in an 
address to the jury in a trial involving the good faith of 
a transaction which Mr. Hodgson had conducted. 

Lord Ellenborough : "The law privileges many com- 
munications which otherwise might be considered 
calumnious, and become the subject of an action. In 
the case of master and servant, the convenience of man- 
kind requires that what is said in fair communication 
between man and man, upon the subject of character, 
should be privileged if made bond fide and without 
malice. So a counsel intrusted with the interests of 
others, and speaking from their information, for the sake 
of public convenience, is privileged in commenting fairly 
on the circumstances of the case, and in making obser- 
vations on the parties concerned and their agents in 
bringing the cause into court. Now the plaintiff in this 
case was not only the attorney, but was mixed up in the 
concoction of the antecedent facts, out of which the 
original cause arose. It was in commenting on this 
conduct that the words were used by the defendant. 
Perhaps they were too strong, but the counsel might 
' Pickering v. Rudd, 4 Camp. 220. 



I So ' REIGN OF GEORGE III. 

io«i/<f^ think them justifiable and appropriate. Ihcy 
were relevant and pertinent to the original cause in 
which they were spoken, and consequently this action is 
not maintainable." ' 

Richard Thornton having been tried at Warwick upon 
an indictment, in the King's name, for the murder of 
Mary Ashford, and found Not Guilty by the jury, Wil- 
liam Ashford, her brother and heir-at-law, sued out an 
appeal of murder against him. The appellee being 
brought by writ of habeas corpus into the Court ef King's 
Bench to plead, he pleaded viva voce as follows : " Not 
Guilty, and I am ready to defend the same by my body ; " 
and thereupon taking off a gauntlet which he wore from 
his right hand, he threw it on the floor of the Court. 
The appellor having obtained time for that purpose,. with 
a view to deprive the appellee of the privilege of trial by 
battle, put in a counter-plea, setting forth evidence of 
circumstances tending strongly to prove his guilt. To 
this the appellee put in a replication, setting forth facts in 
his favor, and his former acquittal. The appellor de- 
murred. The question was then very learnedly argued, 
whether upon this record the appellee was entitled to 
insist upon trial by battle? 

Lord Elletiborough : " The cases which have been cited 
in this argument, and the others to which we ourselves 
have referred, show very distinctly that the general mode 
of trial by law in a case of appeal is by battle, at the 
election of the appellee, unless the case be brought within 
certain exceptions— as for instance, where the appellee is 
an infant, or a woman, or above sixty years of age— or 
where the appellee is taken with the manour, or has 
broken prison. In addition to all these, — where, from 
evidence which may be adduced, there is a violent 
presumption of guilt against the appellee, which cannot 
be rebutted. Without going at length into the dis- 
cussion of the circumstances disclosed by the counter- 
plea and replication, it is quite sufficient to say that this 
case is not like those in Bracton ; it is not one with con- 
clusive evidence of guilt. Contrary evidence must be 
admitted if there were a trial by jury. The consequence 
is, that trial by battle having been duly demanded, this 

' Hodgson V. Scarlett, I Barn, and Aid. 232. 



LORD ELLENBOROUGH. i8i 

is the legal and constitutional mode of trial, and it must 
be awarded, The law of the land is in favor of the trial 
by battle, and it is our duty to pronounce the law as it 
is, and not as we may wish it to be. Whatever prejudices 
therefore may justly exist against this mode of trial, 
still as it is the law of the land the Court must pronounce 
judgment for it." 

The public now expected to see the lists prepared in 
Tothill Fields, and the battle fought out before the 
Judges, for whom a special tribunal was to have been 
erected ; but the appellor, who was much inferior in 
strength to the appellee, cried craven, and declining to 
proceed, the appellee was discharged.' 

Bidding adieu to pure law, which I am afraid may be 
thought by many " rough and crabbed," I must now 
present Lord Ellenborough to my readers as a Peer of 
Parliament, and give some account of trials before him 
of a political and historical aspect. Some expected that 
he would have great success in the Upper House, — and, 
as often as he spoke there, he made a considerable 
sensation by his loud tones and strong expressions ; but 
he was not listened to with much favor, for their Lord- 
ships thought that he was not sufficiently refined and 
polished for their delicate ears, and they complained that 
he betrayed a most unjudicial violence. 

His maiden speech, which gave an alarming earnest of 
these faults, was in the debate on the definitive treaty 
of peace with France. Having apologized to another 
Peer, who had risen and begun to speak at the same 
time with him, and expressed his extreme reluctance to 
obtrude himself upon their Lordships so very soon after 
taking his seat among them, — he addressed himself to 
Lord Grenville's objection, that, contrary to usage and 
sound diplomacy, this treaty did not renew or recognize 
former treaties : — 

" With regard to the noble Lord's argument, that by 
the omission the public law of Europe has become a 
dead letter, I am astonished to observe a man of talents 

' Ashford v. Thornton, l Barn, and Aid. 405. In consequence of the 
scandal occasioned by this case, Stat. 59 Geo. III. c. 46 was passed, abolish- 
ing criminal appeals and trial by battle in writs of right, which till then 
might have been demanded. 



i82 REIGN OF GEORGE III. [1802— 

fall into such a mistake. To what use would the revival 
of J.ll the solemn nonsense and important absurdity con- 
tair.ed in those treaties have contributed ? Are they not 
replete with articles totally inapplicable to the present 
situation of Europe, and are they not for this reason be- 
come unintelligible trash and absolute waste paper? 
With respect to the Cape of Good Hope, the cession of 
which is so much deplored, I say, my Lords, that we are 
well rid of it. There is no advantage in that post, and 
the expense of it would have been so great that the 
country would soon have complained of its retention." 

So he went over all the articles of the treaty, and con- 
cluded with expressing his warm thanks to the ministers 
" who had taken the helm of State when others had 
abandoned it, and who had restored the blessings of 
peace to their exhausted country." ' 

This bullying style of oratory was not favorably re- 
ceived, but luckily for the orator, on this occasion he 
could do no harm, Whigs as well as Ministerialists being 
determined to vote for the treaty, — and the minority of 
violent anti-Gallicans who censured it amounted only 
to sixteen." 

Lord Ellenborough was quite insensible of the im- 
pression made by his violence, and soon after, there be- 
ing an attack on ministers, he began his defense of them 
by saying that "he could not sit silent when he heard 
the capacity of able men arraigned by those who were 
themselves most incapable, and when he saw ignorance 
itself pretending to decide on exuberant knowledge 
possessed and displayed by others." ' The Chief Jus- 
tice of England being a peer may, with propriety and 
effect, take part in the debates of the House of Lords 
on important questions of statesmanship, such as the 
causes of war and the conditions of peace, but he should 
comport himself rather as a judge calmly summing up 
evidence and balancing arguments, than as the retained 
advocate of the Government or of the Oppisition. 

Lord Ellenborough, till he himself became a cabinet 

minister, did not again break out with violence, save in 

opposing a job so gross that he was rather applauded for 

boldly pronouncing its true character. The Athol fam- 

' 35 Pad. Hitt. 718. » lb. 73S. • lb. 1572. 



t8o6.] LORD ELLENBOROUGH. 183 

ily, for certain rights in the Isle of Man, of which they 
were deprived, had been superabundantly compensated; 
but many years after the bargain into which they had 
voluntarily and gratefully entered, they made a claim for 
further compensation, — which the Government, at a 
time when prodigality of expenditure ranked among 
ministerial virtues, was disposed to grant. A bill was 
introduced into Parliament for the purpose, and this 
bill, without Lord Ellenborough's determined opposi- 
tion to it, would have been quietly smuggled through 
He began by rnoving that certain additional papers upon 
the subject should be printed, and that the second read- 
ing of the bill should be postponed till there might be 
an opportunity of perusing and considering them. This 
was resisted by the Earl of Westmoreland. 

Lord Ellenborongh : " My Lords, when I look at the 
papers just now printed, and still reeking from the pres, 
so that I cannot open them without endangering my 
health — ^when I look at a folio volume of 140 uncut 
pages, presented this day by the noble Earl, I cannot 
but enter my protest against pretending to debate the 
merits of this bill under such circumstances — against a 
proceeding which could only be sanctioned by Parlia- 
ment in the worst and most corrupt times. I do not ask 
for a long delay, but I hope that noble Lords will con- 
sult their own dignity, and show some deference to pub- 
lic opinion, by granting a short time for information, 
that we may see whether we are not robbing the Ex- 
chequer to put the plunder into the pocket of an accom- 
plice. I pause for a reply. [Having sat down for a few 
moments he thus resumed.] Then I am to understand, 
my Lords, that it is your intention to proceed with this 
bill to-night. With the imperfect lights I have, I shall 
try to expose to you some of the deformities of the bill. 
In the first three lines of the preamble, it tells three 
lies The Isle of Man was never granted in sovereignty 
by the King of England, but to be held in petty ser- 
geanty by the presentation of two falcons to the King 
at his coronation. This must have been known to the 
author of the bill — yet, ' like a tall bully'— I will not 
•finish the line When the noble Earl talks of Acts of 



1 84 REIGN OF GEORGE III. 1803— 

Parliament not binding the Isle of Man, I am astonished 
at the puerility of the argument ; if Acts of Parliament 
cannot bind the Isle of Man. the Act passed in 1765 for 
the purchase of the Isle is a nullity. Then we have the 
asse'Lion that the compensation given to the late Duke 
of Athol was inadequate. The late Duke named his 
owr sum, and in the course of forty years his family have 
received £\'j'],ooo more than they were entitled to. You 
propose to open on its hinges a door to fraud, which, 
.ike a door described in ' Paradise Lost,' if once opened 
will never be shut again. Never did I witness a gross 
job present itself in Parliament in such a bodily form as 
this. In a few days Parliament will be dispersed, and 
let us not return to our respective homes with the stigma 
of having passed such a bill. Let us not at a moment 
like this, when all classes are ground down with taxes, 
add to their burdens by voting a boon to mendicant im- 
portunity. If indeed our supplies were unlimited, if we 
could draw upon them without any fear of exhaustion, 
if the resources of the state grew like the fabled Pro- 
methean liver under the beaks and talons of the vultures 
by whom they are lacerated and devoured, then indeed 
we might yield to this demand. The times are critical; 
our dangers are great — the state of our finances is hope- 
less ; let us not, my Lords, imitate the conduct of reckless 
sailors in a storm, who, when they see the vessel driving 
on the rocks, instead of trying to save her, throw up the 
helm, abandon the sails, and fall to breaking open the 
lockers. If we would avoid the thunderbolts of divine 
vengeance which seem ready to burst upon us, let us 
rather deck ourselves in the robes of virtue, and with 
the love of God let us try to recover the love of the 
people, of whom we ought to be the protectors, not 
the spoliators. Be the event what it may, liberavi an- 
iinain meam." 

Several " silken barons " having complained of this 
language as too strong and unparliamentary. Lord Ellen- 
borough sa^d, " The attack made upon me would have 
been just had I said anything wantonly to give pain to 
any noble Lord ; but my observations were applied to 
the measure, not to any individual whatever ; and by no 



i8o6.J LORD ELLENBOROUGH. 185 

milder words than those I used could the measure be 
truly characterized.'" 

When the war was renewed after the truce following 
the supposed treaty of peace signed at Amiens, Lord 
i^llenborough, in supporting the Volunteer Consolida- 
tion Bill, very stoutly defended the prerogative of the 
Crown to call out the whole population for the defense 
of the realm : — 

"In an age of adventuous propositions," said he, "I 
did not expect that any noble Lord would have ventured 
to question this radical, essential, unquestionable, and 
hitherto never questioned prerogative. My Lords, from 
the earliest period of our history we have been a mili- 
tary people ; and this right, inherent in the Crown from 
the Norman Conquest, cannot be abandoned without 
an act of political suicide. I hold in my hand a copy of 
the Commission of array passed in the fifth year of 
Henry IV., referred to by Lord Coke in the Fourth In- 
stitute, written in the reign of James I., acknowledged 
by him to be law, and never since repealed or modified. 
Here, my Lords, we have a solemn recognition of the 
power of the Sovereign to require, in case of insurrec- 
tion, or the apprehension of invasion, the services of 
all his subjects capable of bearing arms — in the words 
of the Commission, potentes et habiles in corpore. This 
power, my Lords, is inherent in the supreme executive 
government in every state. Vattel and the other writers 
on the Law of Nations are unanimous in saying that the 
power exists in all countries, royal or republican, which 
have anything like civilized rule. As to the noble Lord's 
supposition that this prerogative enables the King to 
throw all classes indiscriminatively into the ranks, I say 
such an abuse of it is not necessary, and would not be 
tolerated ; men, upon the contemplated emergency, are 
to be employed according to their habits of life, and to 
the modes in which they would be most useful. But I 
trust that in case of extreme necessity no individual 
who bears the semblance of a man, who values his 
country and his domestic ties, and who knows his duty 
to fight body to body, /ro ariset focis, will stickle about 

' 5 Pail. Deb. 773-792. After all, to the great discredit of Mr. Pitt's 
second administration, the bill passed. 



i86 REIGN OF GEORGE III. [1803— 

the mode in which his energies can be most advantage- 
ously brought into action. My Lords, unfitted as I am 
by education and habit for a campaign, yet in such a 
case of extreme necessity I should not think I did my 
duty to my country or to my children, if I did not cast 
this gown from my back, and employ every faculty of 
my mind and of my body to grapple with the enemy." 

His martial ardor was much applauded, and ap- 
peared more wonderful from his speaking on this and 
all other occasions in the House of Lords attired in his 
black silk robes and with a judicial wig.' His hearers 
likewise recollected the well-known fact, that when At- 
torney General he had enlisted in a volunteer corps, and 
had never been promoted to the ranks out of the awkward 
squad, the drill-sergeant having in vain tried by chalk 
and other appliances to make him understand the dif- 
ference between his right foot and his left, or with which 
of them he was to step forward on hearing the word 
" March !" 

The only other considerable speech which he made 
before Mr. Pitt's death was against Lord Grenville's 
motion for a committee on the Catholic Petition, when 
he so violently opposed any further concession to the 
Roman Catholics, that the public were much surprised 
to find him sitting soon after, in the same cabinet with 
Lord Grenville and Charles Fox. We cannot be sur- 
prised that this Cabinet was so short-lived, although it 
contained " all the talents " of the country. Lord Ellen- 
borough very sensibly and forcibly pointed out on this 
occasion the inconvenience arising from giving power 
to religionists owning the supremacy of a foreign pon- 
tiff; but he caused a smile when, in describing the dan- 
ger of the Pope, again subjecting Great Britain to his 
sway, he quoted the lines — 

" Jam tenet Italiam, tamen ultra pergere tendit 
Actum inquit nihil est, nisi Poeno milite portas 
Frangimus et media vexillum pono suburrS.." ' 

Although Lord Ellenborough's success as a debater in 

' Lord Denham was first Chief Justice who appeared in the House of 
Lords en bourgeois. 

' This appears much less absurd now, after Pio Nono's creation of the 
archbishopric of Westminster, and his partition of all England into Roman 
Catholic sees. — September, 1855. 



i8o6.] LORD ELLENBORCUGH. 187 

the House of Lords was doubtful, he was securing to 
himself a great reputation as a Criminal Judge. He 
presided with applause at the trial of Colonel Despard 
for high treason in plotting the insane scheme to estab- 
lish a republic after massacring the King, the royal 
family, and the greatest number of the members of both 
Houses of Parliament. I was present at this trial, and 
well remember the Chief Justice's very dignified, im- 
pressive, and awe-inspiring deportment. He caused 
some dissatisfaction by thus abruptly and sarcastically 
snubbing the great Nelson, who, when called to give the 
prisoner a character, was proceeding to describe his 
gallant conduct in several actions : " I am sorry to be 
obliged to interrupt your Lordship, but we cannot hear 
what I dare say your Lordship would give with great 
effect, the history of this gentleman's military life." 

At two in the morning I saw the Chief Justice put on 
the black cap to pronounce the awful sentence of the 
law on Colonel Despard and his associates, and I heard 
him utter these thrilling sentences: — 

" After a long and I trust a patient trial, you have 
been severally convicted of the high treasons charged upon 
you by the indictment. In the course of the evidence 
which has been laid before the Court, a treasonable con- 
spiracy has been disclosed of enormous extent and most 
alarming magnitude. The object of that conspiracy, in 
which you have borne your several very active and 
criminal parts, has been to overthrow and demolish the 
fundamental laws and established government of your 
country; to seize upon and destroy the sacred person of 
our revered and justly-beloved Sovereign ; to murder 
the various members of his royal house ; to extinguish 
the other branches of the legislature of this realm, and, 
instead of the ancient limited monarchy, its free and 
wholesome laws, its approved usages, its useful gradations 
of rank, its natural and inevitable as well as desirable 
inequalities of property, to substitute a wild- sc-heine of 
impracticable equality, holding out, for the purpose --t 
carrying this scheme into effect, a vain and .delusive 
promise of provision for the families of the lieroes (izX'itiy 
so called) who siim,ld fall in the contest — a scheme equally 
destructive of the interests and happiness of those who 



t88 REIGN OF GEORGE III. [1803— 

should mischievously struggle for its adoption as of those 
■who should be the victims of its intended execution. 
This plan has been sought to be carried into effect in the 
first place by the detestable seduction of unwary soldiers 
from their sworn duty and allegiance to his Majesty and 
by the wicked ensnaring of their consciences by the sup- 
posed obligation of an impious and unauthorized oath, 
and next by the industrious association to this purpose 
of the most needy or the most unprincipled persons in 
the lowest ranks of society. It is, however, wisely or- 
dained by Divine Providence, for the security and 
happiness of mankind, that the rashness of such counsels 
does for the most part counteract and defeat the effects 
of their malignity, and that the wickedness of the con- 
trivers falls ultimately upon their own heads, affording 
at the same time the means of escape and security to the 
intended victims of their abominable contrivances. The 
leagues of such associates are at all times false and 
hollow. They begin in treachery to their king and 
country, and they end in schemes of treachery towards 
each other. In the present instance your crimes have 
been disclosed and frustrated through the operation of 
the same passions, motives, and instruments by which 
they were conceived, prepared, forwarded, and nearly 
matured for their ultimate and most destructive ac- 
complishment. Upon the convicted contrivers and 
instruments of this dangerous but abortive treason it 
remains for me to perform the last painful part of my 
official duty. As to you, Colonel Edward Marcus Des- 
pard, born as you were to better hopes, intended and 
formed as it should seem by Providence for better ends ; 
accustomed as you have hitherto been to better habits 
of life and manners, pursuing as you once did, together 
with the honorable companions of your former life and 
services (who have appeared as witnesses to your 
character during that period), the virtuous objects of 
loyal and laudable ambition ; I will not at this moment 
point out to you how much all these considerations and 
the degraded and ignominious fellowship in which you 
now stand enhance the particular guilt of your crime, 
sharpening and embittering, as I know they must, in the 
same proportion the acuteness and pungency of your 



(So6.] LORD ELLENBOROUGH. 1S9 

present sufferings. I entreat you, howe-, er, by the 
memory of what you once were, to excite and revive in 
your mind an ardent and unceasing endeavor and purpose 
during the short period of your remaining life to subdue 
that callous insensibility of heart of which, in an ill- 
fated hour, you have boasted, and to regain that salutary 
and more softened disposition of the heart and affections 
which I trust you once had, and which may enable you 
to work out that salvation which, from the infinite mercy 
of God, may even yet be attainable by effectual peni- 
tence and prevailing prayers. As to you, John Wood 
(naming eight others), the sad victims of his seduction 
and example, or of your own wicked, discontented, and 
disloyal purposes, you afford a melancholy but I hope an 
instructive example to all persons in the same class and 
condition with yourselves — an example to deter them by 
the calamitous consequences which presently await your 
crimes, from engaging in the same mischievous and de- 
structive counsels and designs which have brought you 
to this untimely and ignominious end. May they learn 
properly to value the humble but secure blessings of an 
industrious and quiet life, and of an honest and loyal 
course of conduct — all which blessings you have in an 
evil hour willfully cast from you. The same recom- 
mendation which I have already offered to the leader in 
your crimes and the companion in your present suffer- 
ings as to the employment of the short remainder of 
your present existence, I again repeat, and earnestly re- 
commend to everyone of you ; and may your sincere 
and deep penitence obtain for you all hereafter that 
mercy which a due and necessary regard to the interest 
and security of your fellow-creatures will not allow of 
your receiving here. It only remains for me to pro- 
nounce the sentence of the law upon the crime of which 
you are convicted. That sentence is, and this Cou'-t 
doth adjudge that, &c." 

Then came the dreadful enumeration of the bar- 
barities which the law at that time adjudged to be 
inflicted on traitors — now commuted for hanging and 
beheading.' 

Colonel Despard and six of his associates actually 

' 28 St. Tr. 315-52S. 



1 9° 



REIGN OF GEORGE III. [1803— 



were executed, and, the revolting parts of the sentence 
being remitted, the public did not complain of undue 
severity. The temptation to engage in such conspira- 
cies, which promise suddenly to elevate those who en- 
gage in them to power, wealth, and fame, cannot be 
counteracted by the dread, on failure, of a term of im- 
prisonment, or even of transportation with the hope of 
a speedy recall. An attempt for selfish purposes to over- 
turn the monarch and to inundate the country with 
blood cannot be leniently treated as a mere " political 
offense." 

Lord EUenborough was soon after placed in a most 
difficult situation on a trial for libel, the prosecutor being 
no other than . Napoleon Buonaparte. This autocrat 
Having extinguished liberty in France and conquered 
the continent of Europe, was resolved to put down free 
discussion in England, as a preliminary to the extension 
of his empire over the British Isles. He was galled by 
the severe strictures on his conduct which appeared in 
the London journals, and he remonstrated upon the sub- 
ject to our ministers, but received for answer that the 
law, which in England is supreme, gave them no power 
to interfere. At last there came out in the Ambigu, a 
periodical in the French language, published in London 
by M. Peltier, a French emigrant, a poem and other ar- 
ticles, which in one sense might be construed into an 
exhortation to assassinate the First Consul. A new rep- 
resentation was made by the French ambassador, and 
the Attorney General was directed to file a criminal in- 
formation against the Editor. The most objectionable 
passage contained the following allusion to the fabled 
death and apotheosis of Romulus : — 

" II est procIamS Chef et Consul pour la vie 

Pour moi, loin qu'i son sort je porta quelque envie, 
Qu'il nomme, j'y consens, son digne saccesseur ; 
Sur le pavois port6 qu'on I'elise Empereur ; 
Enfin, et Romulus nous rappelle la chose, 
Je fais vceu . . . d^s demain qu'il ait I'apothiose." 

At the trial before Lord EUenborough and a special 
jury, Mr. Perceval, then Attorney General, soon after 
prime minister evidently ashamed of the task imposed 
upon him, tried to make out that the defendant really 



iSo6.] LORD ELLENBOROUGH. 191 

wished to instigate assassination; and Mackintosh, in 
one of the finest essays ever composed, argued tliat the 
publications complained of were mere pieces of jocu- 
larity, and that it was the duty of the jury to resist this 
effort to enslave the press in the only country in which 
it could proclaim truth to the world. 

Lord Ellenboroiigli : " Gentlemen, it is m)' duty to 
state to you that every publication that has a tendency 
to promote public mischief, whether by causing irrita- 
tion in the minds of the subjects of this realm that may 
induce them to commit a breach of the public peace or 
may be injurious to the morals and religion of the 
country, is to be considered a libel. So if it defames the 
characters of magistrates and others in high and eminent 
situations of power and dignity in other countries, ex- 
pressed in such terms or in such a manner as to inter- 
rupt the friendly relations subsisting with foreign states 
in amity with us, every such publication is what the 
law calls a libel. Cases of this sort have occurred with- 
in all our memories. Lord George Gordon published a 
libel on the person and character of the Queen of 
France, and another person grossly vituperated Paul, the 
late Emperor of all the Russias. In both these cases 
there were prosecutions, convictions, and judgments, 
and I am not aware that the law on which these pro- 
ceedings were founded was ever questioned. If the pub- 
lication contains a plain and manifest incitement to as- 
sassinate magistrates, as the tendency of such a publica- 
tion is to interrupt the harmony subsisting between the 
two nations, the libel assumes a more criminal com- 
plexion. What interpretation do you put on these 
words ? — ' As for me, far from envying him his lot, let 
him name, I consent to it, his worthy successor; carried 
on the shield, let him be elected Emperor. Finally 
(Romulus recalls the thing to mind) I wish that on the 
morrow he may have his apotheosis.' This is a direct 
wish by the author, that if Buonaparte should be elected 
Emperor of that country, of which he then held the 
government, his death might be instantaneous— or that 
ais destruction might follow on the next day. Every- 
body knows the supposed story of Romulus. He disap 
peared ; and his death was supposed to be the effec*" of 



192 REIGN OF GEORGE III. [iSo6. 

assassination. If the words were equivocal and coulJ 
bear two constructions, I sliould advise you to adopt the 
mildest ; but if these words can bear this sense and this 
■only, we cannot trifle with our duty; we cannot invent 
or feign a signification or import which the fair sense of 
the words does not suggest." 

He then proceeded to comment on other passages, and 
according to the fashion which still prevailed under a 
supposed injunction of Mr. Fox's Libel Bill not to be 
found there, he declared that in his opinion the publica- 
tion was libelous. Thus he concluded : — 

" Gentlemen, I trust that your verdict will strengthen 
the relations by which the interests of this country are 
connected with those of France, and that it will illustrate 
and justify in every part of the world the unsullied 
purity of British Courts of Justice, and of the imparti- 
ality by which their decisions are uniformly governed." 

In spite of a verdict of Guilty, which the jury under 
this direction immediately returned, hostilities were very 
soon renewed with France. Owing to this rupture the 
•defendant was not called up to receive judgment — a 
very undignified course on the part of the Government; 
for the prosecution, if justifiable, must be considered as 
having been commenced to vindicate the majesty of 
English law — not to humor the First Consul of the 
French Republic' 

While Mr. Addington remained prime minister. Lord 
Ellenborough warmly supported him as a partisan ; but 
when Mr. Pitt resumed the helm, the Chief Justice con- 
fined himself almost entirely to the discharge of his 
official duties, and seemed to have renounced politics for 
ever. 

' 28 St. Tr. 529-620. 




CHAPTER L. 

CONTINUATION OF THE LIFE OF LORD ELLENBOj(h<UGH 
TILL THE TRIAL OF LORD COCHRANE. 



ON the death of Mr. Pitt, after the signal failure of 
his last confederacy for the humiliation of France, 
a new ministry was to be formed, and so deplor- 
able was the state of public affairs, that the King's 
antipathy to Mr. Fox could no longer exclude him from 
office. Lord Ellenborough little thought that he him- 
self could in any way be comprehended in the new ar- 
rangement. However, instead of forming a Cabinet of 
Lord Howick, Lord Grenville, and those in whose prin- 
ciples Mr. Fox agreed and with whom he had been lately 
acting in opposition, it was arranged that there should 
be a broad bottom administration, and that, to please the 
King, Mr. Addington, now become Lord Sidmouth, 
should be asked to join it. He refused to go in alone, 
thinking that in that case he might be a cipher, and it 
was conceded to him that he should bring in a friend 
with him. He named Lord Ellenborough, to whom 
personally no objection could be made. The Great Seal 
was offered to the Chief Justice, and pressed upon him ; 
but he positively refused it, partly from a misgiving as 
to his competency to preside in Equity, and still more 
from a foreboding that the new ministry, although it was 
to include " all the talents " of the country, might be 
• short lived. One great object which the Whigs had in 
view was to make Erskine Chief Justice of the King's 
Bench, an office for which he was allowed to be eminently 
competent ; whereas his qualifications for the woolsack 
were deemed very doubtful. Lord Ellenborough advised 
that an attempt should be made to induce Sir James 
Mansfield, the Chief Justice of the Common Pleas, to 
take the Great Seal, that Erskine might succeed him ; 

IV.— 13 



194 



REIGN OF GEORGE III. [1806. 



but the offer being made, he at once said " No ! " — man- 
fully giving as his reason to the King and to his friends 
who pressed him to accept, that all his children were 
illegitimate, although he had married their mother after 
their birth, and he would not have their illegitimacy 
constantly proclaimed by accepting a peerage. Lord 
Ellenborough said " Nothing now remains but for 
Erskine to become Chancellor himself" — and he swore 
a great oath that he would make a y try fair one. With 
this assurance Fox and Grenville assented to the ap- 
pointment, and Erskine, considering Equity mere play 
compared to the common law, very readily acceded to it. 
Lord Ellenborough announced his own determination 
in the following letter to his brother, the Bishop of 
Elphin : — 

" My dear Brother, 

" I have not yet the means of communicating any 
certain intelligence on the subject of Irish arrangements, 
or should have written to you many days ago. I pre- 
sume that Lord Redesdale will not retain the Great Seal 
of Ireland. Public report gives it to Mr. Ponsonby. 

"That of Great Britain was offered me last week by 
Lord Grenville and Mr. Fox, but which for several 
reasons both of duty, propriety, and prudence I declined. 
I have had the honor of Taeing placed in the cabinet 
without any wish on my part, and indeed against my 
wishes — bat a sense both of public and private duty has 
obliged me to accept a situation for the present, which I 
could not have refused without materially disturbing an 
arrangement which is, I think, necessary for the public 
interests at the present moment. I assure you that I 
have no motive of ambition or interest inducing me to 
mix in politics, and will not suffer myself to bear any 
part in them which can trench upon the immediate 
duties of my judicial situation. I am aware that I shall 
incur much obloquy in the hopes of doing some good, 
and remain, My dear Brother, 

" Ever most sincerely and affectionately yours, 

" Ellenborough. 

" Bloomsbury Square, Thursday, 
February 13, 1806." ' 

' Earl of Ellenuorough's MSS. 



i8o6.J LORD ELLENBOROUGH. 195 

It seems strange to us that the incongruity of the 
positions of Cabinet Minister and Chief Justice should 
not have struck " AH the Talents," but in the hurry of 
the moment no attention was paid to it any member of 
the new Government. The members of the Opposition 
had more leisure and were more acute. As soon as the 
list of the Cabinet was published, violent paragraphs 
appeared in the newspapers against the unconstitutional 
conduct of the Whigs, and notices of motion upon the 
suoject were given in both houses of Parliament. 

Lord Ellenborough was taken by surprise when this 
storm arose, and he was much annoyed by it. Although 
his seat in the Cabinet was not to be accompanied with 
any profit, the new dignity had considerably tickled his 
vanity, and he was really in hopes that he might be of 
service to the country — particularly in watching over the 
Church establishment, and checking any concession to 
the Roman Catholics. He was fully convinced that the 
objection now started was unfounded, but he made up 
his mind that he would not condescend to discuss the 
question in parliament, and thus he addressed the Bishop 
of Elphin : — 

" Bloomsbury Square, March I, 1806. 

" My dear Brother, 

" My entire occupations for some time past at West- 
minster and Guildhall have excluded me from the means 
of learning any news worth sending you. 

"A question comes on on Monday in both Houses, 
which is brought forward under so much misconception 
of its true merits, and so much party heat and violence, 
that I shall not wonder if it is carried. The object of 
those by whom it is brought forward is to obtain a vote 
of censure upon my appointment to a situation in the 
Cabinet, on the ground of a supposed incompatibility in 
that situation in his Majesty's councils with my judicial 
situation and duties. I think it the more dignified and be- 
coming course not to attend the House upon the occasion. 
If any vote of the kind intended should be carried, it is 
my determination to resign my situation as a Privy 
Councillor; with the duties of which I shall consider the 
vote (if it has any meaning at all) as pronouncing my 
judicial function as incompatible. The vote, if it comes 



196 REIGN OF GEORGE III. [1806 

at all, must be under an entire ignorance or misunder- 
standing of the history of the country and the prece- 
dents respecting the situation I fill, its proper and usual 
duties, and the political duties which the Legislature 
and the Sovereign have from time to time in the most 
anxious and important periods connected therewith. 
You will find this displayed in the debate by Lord Gren- 
ville and Mr. Fox, who are fully masters of the subject. 
I have thought it proper to give you this hint that you 
may be prepared to expect and to understand the con- 
duct I am determined to adopt. 

" Yours, my dear Brother, ever most affectionately, 

" Ellenborough." 

When the motions came on, it appeared that there 
was no ground for apprehension as to the immediate re- 
sult, for in the House of Commons the proposed cen- 
sure was negatived by a large majority,' and in the 
House of Lords it was negatived without a division.' 
Next morning Lord Ellenborough, before going into 
court, despatched the following letter to his brother : — 

" 8 o'clock, Friday morning, March 5, 1806. 
" Bloomsbury Square. 

" My dear Brother, 

" The result of the motion of last night on my sub- 
ject in the Lords was that it was negatived without a 
division. I thought it most becoming in my situation 
and character not to be present. 

" In the Commons it was negatived by a majority of 
222. to 64, at f past one this morning. I have not yet 
heard any further particulars. I should be glad to see 
the debate. I am sure that Lord Grenville and Mr. Fox 
were perfectly masters of this question in all its bear- 
ings, and have no doubt they would discuss it most 
ably. I am hastening to discharge my daily duties in 
Court, and can add no more than that I am, 
" My dear Brother, 

" Ever most affectionately yours, 

" Ellenborough." 

On his arrival at Guildhall he received the following 
letter from Lord Chancellor Erskine : — 

■ 4 Pari. Deb. 284. » lb. 541. 



i8o6.] LORD ELLENBOROUGH. 19/ 

" My DEAR Lord, 

" You have been amply rewarded for the firmness 
with which you resisted the private applications on the 
subject of your seat in the Cabinet by what passed last 
night. In our House everything was to your honor ; 
and indeed, though there was a great deal of excellent 
speaking, there was no debate ; at least nothing which 
could be called so, because, after their batteries were 
completely silenced, they were under the fire of Lord 
Holland and Lord Grenville for near two hours, so that, 
before I put the question, I had only to say that the ob- 
jection was dead and buried ; and, as Lord Eldon had in 
his speech said that he still hoped your Lordship would 
withdraw from the Cabinet, I begged to hope in my turn 
that Lord Bristol, after what he had heard, and which 't 
was impossible he could have been acquainted with, 
would withdraw his motion. Lord Bristol made no an- 
swer. Nothing more was said, and on the question being 
put, there was nothing that had even the aspect of a di- 
vision. I hardly heard a voice. David says that in the 
Commons Fox and Sheridan were most admirable — and 
the nakedness of the land appeared in their division of 
64. I was quite delighted with the result, because I am 
sure the whole has originated in spleen, and the people 
have been made a mere stalking-horse for those who have 
for ever been their oppressors. 

" Your Lordship's most faithful and sincere 

" Erskine. 

■' Tuesday morning," 

But it appears to me that the argument was all on the 
losing side. That the letter of the law does not recog- 
nize the Cabinet as distinguished from the Privy Council 
is true ; but in the practical working of the constitution 
the Cabinet has been long known as a separate defined 
body in whom, under the Sovereign, the executive gov- 
ernment of the country is vested, and the names of the 
members of it have been as notorious as the names of 
the Lord Chancellor, or the First Lord of the Treasury, 
or the Secretaries of State, for the time being. Without 
this body the monarchy could not now subsist, and any 
writer describing our polity would point it out as one of 
the most important institutions in the State. To say 



198 REiGN OF GEORGE III. [1806. 

therefore that whoever may without impropriety be 
sworn of the Privy Council, may without impropriety be 
introduced into the Cabinet, is a mere quibble wholly 
unworthy of Mr. Fox and Lord Grenville. Their con- 
cession that the Chief Justice should absent himself 
from the Cabinet when the expediency of commencing 
prosecutions for treason or sedition was to be discussed, 
is decisive against them, and they did not attempt to an- 
swer the observation that the circumstance of the Chief 
Justice being a member of the Cabinet, however pure 
his conduct might be, was sure to brmg suspicion upon 
the administration of justice before him in all cases con- 
nected with politics. The mischief is not confined to 
the period when he actually continues a Cabinet minis- 
ter ; for when his party is driven from power, although 
all his colleagues are deprived of their offices, he still 
presides in the Court of King's Bench, and there is much 
danger that in Government prosecutions he will be 
charged with being actuated by spite to his political 
opponents. As to the fact of the Chief Justice having 
been a member of a council of regency, the precedents 
might as well have been cited of Chief Justices in the 
King's absence governing the realm, and deciding cases 
in the AULA REGIS. The only real precedent was that 
of Lord Mansfield from 1757 to 1765, and that was 
strongly condemned at the time by Lord Shelburne and 
other great statesmen. The resolution to keep Lord 
Chief Justice EUenborough in the Cabinet gave a dan- 
gerous shake to the new Government ; and public 
opinion being so strong against it, the advantage ex- 
pected from it was not enjoyed, for, from a dread of 
injuring his judicial reputation, he took little part in 
debate, and remained silent on occasions when, profess- 
ing to be an independent peer, he might legitimately 
have rendered powerful help to the Government. It is 
said that Lord EUenborough himself ere long changed 
his opinion, and to his intimate friends expressed deep 
regret that he had ever been prevailed upon to enter the 
Cabinet.' 

' The following letters, which passed at the time between Lord EUen- 
borough and Mr. Perceval, then beginning to take tlie lead of the Tory 
party, have been communicated to me. Considering the eminence of the 



i8o6.J LORD ELLENBOROUGH. 199 

While the "Talents" remained in office the only Gov- 
ernment measure on which the Lord Chief Justice spoke 
in the House of Lords was the Bill for abolishing the 

writers and the permanent interest of the subject, I think it right that they 
should be preserved. 

Mr. Perceval to Lord Ellenborough. 

" My dear Lord, 

" I believe Mr. Spencer Stanhope will certainly give notice to-morrow 
iu the House of Commons of his intention to submit some motion to the 
House on the subject of your Lordship's situation i n the Cabinet. Feeling 
as I do upon the subject, and convinced as I am after a great deal of reflec- 
tion upon it, that the propriety of the appointment cannot be maintained 
in argument, I should think that I acted unkindly, if not treacherously, by 
you (especially as with these feelings I shall be obliged to take a part my- 
self in the debate upon this motion), if I did not once more, with great 
earnestness, recommend to you the expediency of reconsidering the subject, 
and of retiring willingly in deference to the public sentiment from the situ- 
ation in question. I advise it the more readily, because I am sure you do 
not covet the situation yourself, and that you are risking your own charac- 
ter, which is too important a public possession to be risked lightly, out 
of deference to the opinions and feelings and wishes of others, rather than 
your own. And however unpleasant it may be either to you or your friends 
to take a step which apparently acknowledges that you have fallen into an 
error, yet, as you may depend upon it, it will come to this at last, or else 
raise a ferment of which at present you have no conception, and in which 
youriiew friends will leave you to yourself; it must be clearly less unpleas- 
ant to you, when the implied acknowledgment will amount to no more 
than that you have committed an error, into which under the circumstances 
any person might very naturally have fallen, than to wait till the time when 
this implied acknowledgment will not only be that you have committed an 
error, but that you have tried to persevere in it after it was pointed out to 
you, and against, if not the force of argument, at least the weight of public 
opinion. Your friends who advise you against the step which I now re- 
commend, cannot, I am certain, see this subject in all its bearings or they 
could not, as your friends, so advise you. You, and they both, living per- 
haps encircled a good deal by our own friends (who borrow their impressions 
upon such subjects in great measure from yourselves, and do little more 
than reflect back upon you your own opinions), do not come in contact with 
the opinion of the public. It requires some effort, as I feel at this moment, 
to communicatfe an unwelcome truth, and therefore few people will have 
the hardihood to tell you how apparently unanimous the public opinion is 
against the Government on this point. The confidence and kindness with 
which you have uniformly favored me, have drawn from me this frank ex- 
; ression of my sentiments. I trust you are not offended at it. As far as 
■arty feeling against the Government could go, I assure you I should covet 
me discussion. And I cannot trace in my own mind any improper bias 
which actuates me, unless indeed the disinclination which I feel to be forced 
into a situation where my duty will oblige me to take a part in a debate, 
possibly unpleasant to your feelings, may be deemed an improper bias. 
" I am, my dear Lord, 

" Yours most truthfully and faithfully, 
'■ Lincoln's Inn Fields, Feb. 23, 1806." " Sp. Percbval. 



20O REIGN OF GEORGE III. [1806. 

Slave Trade ; and of his speech on this occasion, which 
seems to have been elaborate and eloquent, the follow- 
ing is the only record extant : — 

" Lord EUenborough supported the bill in a variety of 

Lord Ellenborough to Mr. Perceval. 
" My dear Sir, 

" I should not truly state my own feelings upon the occasion, if I did 
not say that I received on many accounts very great pain from the perusal 
of your letter. 

" You will no doubt conscientiously pursue your own line of conduct. I 
have only to request that you will have the charity to suppose that I am 
equally guided by principles of duty, when I declare my intention of abid- 
ing and conforming to the sense which Parliament may think fit to express 
on my subject. I would, as you advise me to do, retire in deference to the 
public sentiment, if I was perfectly satisfied that the sentiment of the unpre- 
judiced part of the public did not acaord with my own — but I am yet to learn 
that the judment of those who consider the question without party bias is 
against me, and am wholly at a. loss to discover what duties, in respect of 
advice to the Crown, are cast upon me in the character of what is called a 
Cabinet Councillor which do not already attach upon me as a member of 
the Privy Council, under the oath I have taken in case his Majesty should 
think fit to require my advice as a Privy Councillor (as he has often done 
that of others) upon subjects relative to the executive Government of the 
country. However, as you tell me you are ' convinced that the propriety 
of the appointment cannot be maintained in argument,' I will forbear to 
waste your time or my own in unavailing discussions, and remain, with 
thanks for the frankness and explicitness of your communication, and a 
strong sense of former kindness, very sincerely yours, 

" Ellenborough." 



Mr. Perceval to Lord Ellenborough. 

" Lincoln's Inn Fields, 
" Monday evening, Feb. 24. 
" My dear Lord, 

" I cannot possibly permit the letter which I received from you this 
morning, to be the last which should pass between us upon the subject to 
which it relates. I cannot fail to perceive that you are much offended by 
my former letter ; and I must endeavor to remove, so far as I can, the 
grounds for that offense, which any objectionable expressioift in it may have 
afforded. If there is any one word in it which intimates or insinuates the 
slightest or most distant suspicion that you will not act, or have not acted, 
upon this occasion, as upon all others, upon what you conceive to be the 
true principles of duty, or which conveys the least ground for your thinking 
it necessary to request that I would have the charity to suppose that you 
would act upon such principles, I can only say that I have been most un- 
fortunate in the language which I have used, and have conveyed a senti- 
ment directly the reverse of what I felt, as well as of what I intended to 
convey. From some expressions of my letter, which you repeat, under- 
lined, I fear that in expressing strongly what I strongly felt, I have used 
language which you have thought disrespectful ; if I have done so, I am 
extremely sorry for it, and ask your pardon most readily for the manner in 
which I have executed my purpose. But for the matter of it, I am so con- 



i8o6.] LORD ELLENBOROUGH. 201 

arguments, and, adverting to the speech of a noble and 
learned Lord (Eldon), expressed his astonishment that 
any noble Lord who had supported and approved of the 
same measure, in the shape of an order of council, should 

scious that I never acted by you or anybody under a more sincere impres- 
sion of personal regard, than in writing that letter, that though I must be 
sorry for my failure, I should even now reproach myself if I had not sent it. 
" When I referred to the sentiments of the public being against the Gov- 
ernment upon this question, I ought certainly to have been aware that 
nothing is more difficult than to collect with any accuracy the public opinion. 
But I did so refer to them because I had conversed with, and collected the 
sentiments of, many persons wholly unconnected with party, of different 
descriptions, some of them members of our own profession (whose judg- 
ments form no unimportant criterion), and also of several persons friendly 
to the present Government, and I have not met witli a single one who has 
doubted the impropriety of the appointment. You say ' that you are yet to 
learn that the judgment of persons who consider the question without party 
bias, is against you.' I fully believe that you are so, and it was my belief 
of this which is my only justification for troubling you with my letter, 
Your situation is so elevated that you have no chance of obtaining informa- 
■.ion upon such a subject, unless some real friend will, as I have done, risk, 
with the hope of serving you, the chance of offending. I have exposed my- 
self to that chance, and I fear have been unfortunate. Even now I doubt 
whether you distinguish between the illegality, which you certainly may 
strongly contest, and the impropriety of this appointment, its inexpediency, 
its tendency to diminish (not tlie true upright and independent administra- 
tion of justice, for in your instance I am sure that will never be), but the 
satisfactory administration of it in the opinion, or, if you please, tlie pre- 
judices of the people. It was this impropriety that I stated (in terms which 
I wish I had not used because they offended you) could not be maintained 
in argument. I will however trouble you no further, and should be ashamed 
of having troubled you so long, but for the concluding sentence of your note, 
in which, in expressing a strong sense oi ray former kindness you too plainly 
imply that in this instance you suppose me to have departed from it. And 
I thought it but due to that kindness and friendship which I wished still to 
retain, or recover, not to spare myself any trouble in endeavering to remove 
as far as I can the unfavorable impression you have received. I hardly 
know bow to hope that, under the immediate effect of present impressions, 
your opinion of my former letter can be changed, I hope however you will 
do me the favor to keep what I have written, and if when temporary feelings 
may have passed by, you will fairly ask yourself what possible motive I 
could have had to have written an unpleasant letter to yon on this or any 
other subject, except that which I profess. I think you will be convinced 
that you can find no trace of any intentional departure from the most 
friendly kindness and good will in any thing I have done. 

" I am, my dear Lord, 

" Very sincerely yours, 
" Tuesday morning." " Sp. Percbval. 

Lord Ellenborough to Mr. Perceval. 

" My dear Sir, 

" I received your letter this morning as I was setting out 
for Guildhall, or would have immediately thanked you for the kind ■ 



202 REIGN OF GEORGE III. [iSo6 

oppose this bill, unless it was that they proceeded from 
differei.t men. The ex-Chancellor and the Chief Justice 
thereupon got into a shaip altercation, which was put an 
end to by Lord Lauderdale requiring the clerk at the 
table to read the Standing Order against taxing 
speeches." ' 

Lord EUenborough regularly attended the trial of 
Lord Melville, and as to the 2nd, 3rd, Sth, 6th, 7th, and 
8th Articles, laying his hand on his breast, said with 
great emphasis and solemnity, " GuiLTY, UPON MY 
HONOR." The acquittal of the noble Viscount upon the 
2nd Article, charging him with having connived at the 
improper drawing of money of Mr. Trotter, without 
alleging that he himself derived any profit from the 
money so drawn, showed that impeachment can no 
longer be relied upon for the conviction of state offenses, 
and can only be considered a test of party strength. 
Almost all good Tories said NOT GUILTY, and the inde- 
pendent course taken by Lord EUenborough very much 
raised him in public estimation." 

The following letter shows that he acted cordially with 
Mr. Fox, and was confidentially consulted by that great 
statesman in the attempt then made to bring about a 
pacification with Napoleon contrary to the wishes of the 
King :— 

" Secret and Confidential. 
" Many thanks to you, my dear Lord, for your note. 
The argument is quite satisfactory, and I should hope 

terms in which it is written and the fritndly spirit it breathes. Nothing 
will give me I assure you more pain than that events should occasion 
an interruption of that confidence and regard between us from which I had 
long derived so much satisfaction, and which I had once hoped would en- 
dure as long as we both live. I cannot but acknowledge that the admoni- 
tions to retire and some other expressions in your letter appeared to me of 
a harsher tone and temper than you would, I thought, on consideration have 
been pleased with yourself or have adopted in any communication with me, 
but they excited more of sorrow than anger in my mind. Upon the princi- 
pal question between us I forbear to say one word — in the position in which 
it at present stands it cannot be further touched by either of us with any 
degree of delicacy. 

" I remain, with a sincere regard for your character and conduct which I 
feel neither time or events ever can efface, 

" Most faithfully yours, 

" Ellenborough." 

' Pari. Deb. vol. vii. p. 234. s 29 St. Tr. 549-1483. 



1807.J LORD ELLENBOROUGH. 203 

Holland would not be a point on which there would be 
much difficulty. I have heard something to-day which 
makes me apprehend that internal difficulties, and those 
fromthe highest quarter, will be the greatest. I hope 
nothing will prevent your attending, Monday, at eleven, 
for a consultation of greater importance in all its conse- 
quences never did nor never can occur. Shall we shut 
the door for ever to peace with France ? Shall we ad- 
mit that a council and ministers are nothing ? that the 
opinion of the K. is everything, from what suggestions 
soever he may have formed that opinion ? These are 
qnestions of some moment. Let us act honorably and 
fairly (in as conciliating a manner as possible, I agree). 
We may be foiled, the country may be ruined, but we 
cannot be dishonored. I am, with great regard, my dear 
Lord, " Yours ever, 

"C. J. Fox. 

" St. Anne's Hill, Saturday evening." 

On the death of Mr. Fox, Lord EUenborough con- 
tinued a cabinet minister, under Lord Grenville, till the 
entire dissolution of the government of All the Talents. 
Notwithstanding his objection to Roman Catholics 
sitting in Parliament, he had given his consent in the 
Cabinet to the little bill (which produced such great 
effects) for permitting Roman Catholics to hold the rank 
of field officers in the army; but when the rupture 
actually took place, his sympathies were with the King, 
and he declared it to be not unreasonable or unconsti- 
tutional that the King's ministers should be required to 
pledge themselves to propose no farther concessions to 
the Roman Catholics.' However, the Chief Justice 

' Lord EUenborough had once looked favorably on the claims of the 
Irish Roman Catholics, but had become much afraid of them by the repre- 
sentations of his brother, the Bishop of Elphin, who had been exposed to 
serious perils in the Irish rebellion of 1798, in which he displayed great 
gallantry. When Lord Cornwallis, during the insurrection, was riding with 
his staff at the head of a column in march, the first object he saw through the 
haze, one morning, was the Bishop on horseback, coming to join him, with 
a sword by his side, and pistols in his holsters. This same Bishop carried oif 
in his carriage, from his own door, a country neighbor, who he heard was to 
join the rebels the next day, and drove him 20 miles, into Dublin. He had 
induced him to enter by courteously offering him a lift, but the moment the 
door of the carriage was closed upon his friend, he collared him, and told 
him he was his jjrisoner, and the coachman, having his orders, whipped his 
horses into a gallop. The Bishop had all the qualities of a Christian pastor, 



204 



REIGN OF GEORGE III. 1807 



parted on good terms with Lord Grenville, who gave him 
the following testimony to his honorable conduct while 
they had acted together in the Cabinet : — 

" Downing Street, March 13, 1807. 

" My dear Lord, 

" The matter which has of late occupied our atten- 
tion, is now brought to a state which appears to leave 
no possibility of the further continuance of the govern- 
ment. Although I have the misfortune of differing from 
your Lordship on the expediency of the measures which 
have been in question, yet the frank and honorable con- 
duct which has at all times marked every part of the 
share which you have taken in the deliberations and 
measures of the government, while it subsisted, makes 
me extremely anxious to have, if possible, the satisfac- 
of conversing with you to-morrow morning, previous to 
my going to the Queen's house, in order that I may 
have the opportunity of stating to you the course which 
we have taken during the last two days, and the grounds 
on which we have acted. 

" Whatever be the course of the events to which these 
transactions may lead, I shall ever retain a strong sense 
of the conduct which you have held on all occasions 
during the time that we have acted together, and a sin- 
cere respect for your character. 

" I have the honor to be, my dear Lord, 

" Most truly and faithfully, 
" Your most obedient, humble servant, 

" Grenville." 

Henceforth, Lord EUenborough, estranging himself 
entirely from the Whigs, entered into a still closer alli- 
ance with Lord Sidmouth, and, till his friend and patron 
again returned to office under Lord Liverpool, joined 
the small Addingtonian opposition in the House of 
Lords. 

Accordingly, on the motion for the restoration of the 
Danish Fleet, he declared " that in his opinion there was 
no act that had ever been committed by the Govern- 
but it was thought that, if in the law, he would have made a still better Chief 
Justice than his brother Edward, although it is rather doubtful whether 
Edward, in the church, would have displayed the mild virtues expected in a 
Bishop. 



i8o7.J LORD ELLENBOROUGH. 205 

merit of this country which so much disgraced its char- 
acter and stained its honor as the expedition to Copen- 
hagen ; as an Englishman he felt dishonored whenevei 
the national honor was tarnished ; the expedition re 
minded him of 

" the ill-omen'd bark 

Built in th' eclipse, and rigg'd with curses dark." 

He thought the object it had in view was most unjusti- 
fiable, and that even the success of that object would 
bring great calamity upon the country. When necessity 
was pleaded, noble Lords should recollect that this plea 
rested on an overwhelming, inevitable urgency to do a 
particular act — not on mere predominating convenience. 
Many persons considered it justification enough that it 
might be very convenient for the country in this instance 
to apply to its own use what belonged in full property 
to another. This doctrine he was so much in the habit 
of rebrobating at the Old Bailey, that he could not help 
expressing himself with some warmth when he found it 
set up and acted upon by their Lordships." ' 

Having defended the Bill by which the Attorney Gen- 
eral was empowered to hold bail in cases prosecuted by 
him, and Earl Stanhope having said that such language 
might have been expected from Jeffreys or Scroggs, 
Lord Ellenborough thus retorted : — 

" My Lords, from my station as Chief Justice of Eng- 
land I am entitled to some degree of respect ; but I 
have been grossly calumniated by a member of this 
House, who has compared me to monsters who in for- 
mer reigns disgraced the seat of justice — such as Scroggs 
and Jeffreys. I shall treat the calumny and the calum- 
niator with contempt." 

Earl Stanhope : " I meant no such comparison, and if 
the noble and learned Lord from intimate acquaintance 
has found a resemblance, this must be one of his singu- 
larities ; but his rash precipitaAcy in misapplying what 
fell from me, convinces me that it might be dangerous 
to delegate the power created by the Bill even to the 
noble and learned Lord." ' 

The Bill passed, but, being most unnecessary and 
most odious, it was not acted upon by any Attorney 

' ro Pari. Deb. 655. ' 11 Pari. Deb. 710. 



2o6 REIGN OF GEORGE III. [1810. 

General, not even by Sir Vicary Gibbs, its author, 
who, by his oppressive multiplication of ex-officio in- 
formations, brought himself and his office into sad dis- 
repute. 

One of these informations, which excited much inter- 
est, was filed against Mr. Perry, the proprietor of the 
Morning Chronicle. He was a gentleman of consider- 
able talents and high honor, who did much to raise to 
respectability and distinction the profession of a journal- 
ist in this country. He abstained from all attacks on 
private character; he was never influenced by any mer- 
cenary motive ; and his paper, although strongly op- 
posed to the Tory Government, steadily adhered to true 
constitutional principles. An article in the Morning 
Chronicle, after calmly discussing the Catholic question, 
thus concluded : "What a crowd of blessings rush upon 
one's mind that might be bestowed upon the country in 
the event of a total change of system ! Of all monarchs 
indeed since the Revolution, the successor of George 
in. will have the finest opportunity of becoming nobly 
popular." 

Sir Vicary's information alleged that the defendant 
" being a malicious, seditious, and evil-disposed person, 
and being greatly disaffected to our Sovereign Lord the 
King and to his administration of the government of 
this kingdom, and most unlawfully, wickedly, and 
maliciously designing, as much as in him lay, to bring 
our said Lord the King, and his administration of the 
government of this kingdom, and the persons employed 
by him in the administration of the government of this 
kingdom into great and public hatred and contempt 
among all his liege subjects, and to alienate and with- 
drawn from our said Lord the King the cordial love and 
affection, true and due obedience, fidelity and allegiance 
of the subjects of our said Lord the King, did print and 
publish a certain scandalous, malicious, and seditious 
libel " [setting out the words which I have copied]. 

Mr. Perry appeared as his own counsel, and defended 
himself with singular modesty, tact, and eloquence. 

At his request the following paragraph was allowed to 
be read from the same newspaper : — 

" The Prince has thought it hi? duty to express to his 



iSio.J LORD ELLENBOROUGH. 207 

Majesty his f.rm and unalterable determination to pre- 
serve the same course of neutrality which he has main- 
tained, and which, from every feeling of dutiful attach- 
nient to his Majesty's person, from his reverence of the 
virtues and from his confidence, in the wisdom and 
solicitude of his Royal Father for the happiness of his 
people, he is sensible ought to be the course that he 
■should pursue." 

Lord Ellenborough, in summing up to the Jury, after 
commenting upon the weight to be given to this para- 
graph, thus proceeded : — , 

" The next and most important question is, what is 
the fair, honest, candid construction to be put upon the 
words standing by themselves. Is the passage set 
out in the information per se libelous? The first 
sentence easily admits of an innocent interpretation. 
' What a crowd of blessings rush upon one's mind that 
might be bestowed upon the country in the event of a 
total change of system ! ' The fair meaning of the ex- 
pression, ' change of system,' I think is a change of 
political system — not a change in the frame of the estab- 
lished government — but in the measures of policy which 
have been for some time pursued. By 'total change of 
system ' is certainly not meant subversion or deinolition, 
for the descent of the crown to the successor of his 
Majesty is mentioned immediately after. The writer 
goes on to to speak of the blessings that may be enjoyed 
upon the accession of the Prince of Wales ; and there- 
fore cannot be understood to allude to a change incon- 
sistent with the full vigor of the monarchical part of the 
constitution. Now I do not know that merely saying, 
there would be blessings from a change of system, with- ■ 
out reference to the period at which they may be ex- 
pected, is expressing a wish or a sentiment that may not 
be innocently expressed in reviewing the political con- 
dition of the country. The information treats this as a 
libel on the person of his Majesty, and his personal 
administration of the government of the country. But 
there may be error in the present system, without any 
vicious motives, and with the greatest virtues, on the 
part of the reigning Sovereign. He may be misled by 
the ministers he employs, and a change of system may 



2o8 REIGN OF GEORGE III. [1810. 

be desirable from their faults. He mayhimseli, notwith- 
standing the utmost solicitude for the happiness of his 
people, take an erroneous view of some great question of 
policy, hither foreign or domestic. I know of but ONE 
Being to whom error, may not be imputed. If a person 
who admits the wisdom and the virtues of his Majesty, 
laments that in the exercise of these he has taken an 
unfortunate and erroneous view of the interests of his 
dominions, I am not prepared to say that this tends to 
degrade his Majesty, or to alienate the affections of his 
subjects, I am not prepared to say that this is libelous. 
But it must be with perfect decency and respect and 
without any imputation of bad motives. Go one step 
farther, and say or insinuate, that his Majesty acts from 
any partial or corrupt view, or with an intention to favor 
or oppress any individual or class of men, and it would 
become most libelous. However, merely to represent 
that an erroneous system of government obtains under 
his Majesty's reign, I am not prepared to say exceeds the 
freedom of discussion on political subjects which the law 
permits. Then comes the next sentence : ' Of all 
monarchs, indeed, since the Revolution, the successor of 
• George the Third will have the finest opportunity of 
becoming nobly popular.' This is more equivocal ; and 
it will be for you, gentlemen of the Jury, to determine 
what is the fair import of the words employed. Formerly 
it was the practice to say, that words were to be taken 
in the more lenient sense : but that doctrine is now ex- 
ploded ; they are not to be taken in the more lenient 
or more severe sense ; but in the sense which fairly belongs 
to them, and which they were intended to convey. Now, 
dc these words mean that his Majesty is actuated by 
improper motives, or that his successor may render him- 
self nobly popular by taking a more lively interest in the 
welfare of his subjects ? Such sentiments, as it would 
be most mischievious, so it would be most criminal to 
propagate. But if the passage only means that his 
Majesty during his reign, or any length of time, may 
have taken an imperfect view of the interests of the 
country, either respecting our foreign relations, or the 
system of our internal policy, if it imputes nothing but 
iionest error, without moral blame, I am not prepared 



tSio.J LORD ELLENBOROUGH 209 

to say that is a libel. The extract, read at the request 
of the defendants, does seem to me too remote in point 
of situation in the newspaper to have any material bear- 
ing on the paragraph in question. If it had formed a 
part of the same discussion, it must certainly have tended 
strongly to show the innocence of the whole. It speaks 
of that which every body in his Majesty's dominions 
knows, his Majesty's solicitude for the happiness of his 
people ; and it expresses a respectful regard for his 
paternal virtues. What connection it has with tha 
passage set out in the information, it is for you to de- 
termine. Taking that passage substantively and by 
itself, it is a matter, I think, somewhat doubtful, whether 
the writer meant to calumniate the person and character 
of our august Sovereign. If you are satisfied that this 
was his intention by the application of your under- 
standings honestly and fairly to the words complained 
of, and you think they cannot properly be interpreted by 
the extract which has been read from the same paper, 
you will find the defendants guilty. But if, looking at 
the obnoxious paragraph by itself, you are persuaded 
that it betrays no such intention ; or if feeling yourselves 
warranted to import into your consideration of it a 
passage connected with the subject, though considerably 
distant in place and disjoined by other matter, you infer 
from that connection that this was written without any 
purpose to culumniate the personal government of his 
Majesty, and render it odious to his people, you will 
find the defendants not guilty. The question of intention 
is for your consideration. You will not distort the 
words, but give them their application and meaning as 
they impress your minds. What appears to me most 
material, is the substantive paragraph itself; and if you 
consider it as meant to represent that the reign of his 
Majesty is the only thing interposed between the sub- 
jects of this country and the possession of great bless- 
ings, which are likely to be enjoyed in the reign of his 
successor, and thus to render his Majesty's administration 
of his government odious, it is a calumnious paragraph, 
and to be dealt with as a libel. If, on the contrary, you 
do not see that it means distinctly, according to your 
reasoning, to impute any purposed mal-administration to 
IV. — 14 



2IO REIGN OF GEORGE III. [1810. 

his Majesty, or those acting under him, but may be 
fairly construed as an expression of regret that an 
erroneous view has bee a taken of public affairs, I am 
not prepared to say that it is a libel. There have been 
errors in the administration of the most enlightened men. 
I will take the instance of a man who for a time ad- 
ministered concerns of this country with great ability, 
although he gained his elevation with great crime — 1 
mean Oliver Cromwell. We are at this moment suffering 
from a most erroneous principle of his government in 
turning the balance of power against the Spanish 
monarchy in favor of the House o^ Bourbon. He thereby 
laid the foundation of that ascendency which, unfortu- 
nately for all mankind, France has since obtained in the 
affairs of Europe. The greatest monarchs who have ever 
reigned — monarchs who have felt the most anxious 
solicitude for the welfare of their country, and who have 
in some respects been the authors of the highest bless- 
ings to their subjects, have erred. But could a simple 
expression of regret for any error they had committed, 
or an earnest wish to see that error corrected be con- 
sidered as disparaging them, or tending to endanger 
their government ? Gentlemen, with these directions 
the whole subject is for your consideration. Apply your 
minds candidly and uprightly to the meaning of the 
passage in question ; distort no part of it for one purpose 
or another ; and let your verdict be the result of your 
fair and deliberate judgment." 

The defendant was acquitted.' As soon as the fore- 
man of the jury had pronounced the verdict. Sir Vicary 
Gibbs, the Attorney General, turning round to me, said, 
" We shall never get another verdict foi: the Crown while 
the Chief Justice is in opposition." His Lordship cer- 
tainly since the dissolution of the Talents Administra- 
tion had kept up an intimacy with Addington and the 
Grenvilles, but it was a mere piece of Mr. Attorney's 
spleen to suppose that the Judge was actuated by any 
desire to mortify the existing Government, although the 
possibility of such a suspicion is argument enough against 
a Chief Justice of the King's Bench ever being a mem- 
ber of any Cabinet. 

' 31 St. Tr. 335 ; 2 Camb. 398. 



/8ii.J LORD ELLENBOROUGH. 211 

Lord Ellenborough had a violent hatred of libelers, 
and generally animaverted upon rhem with much se- 
verity. He soon after did his best to convict Leigh 
Hunt, then the editor of the Examiner, upon an ex- 
officio information for publishing an article against the 
excess to which the punishment of flagellation had been 
carried in the army : — 

" Gentlemen," said he to the jury, " we are placed in 
a most anxious and awful situation. The liberty of the 
country — everything that we enjoy — not only the inde- 
pendence of the nation, but whatever each individual 
among us prizes in private life, depends upon our for- 
tunate resistance to the arms of Buonaparte and the 
force of France, which I may say is the force of all 
Europe combined under that formidable foe. It be- 
comes us, therefore, to see that there is not in addition 
to the prostrate thrones of Europe an auxiliary within 
this country, and that he has not the aid for the further- 
ance of his object of a British press. It is for you, be- 
tween the public on the one hand, and the subject on the 
other, to see that such a calamity does not overwhelm 
us. Is this the way of temperate discussion ? The first 
thing that strikes us is this ONE thousand lashes in 
large letters. What is this but to portray the punish- 
ment as a circumstance of horror, and excite feelings of 
detestation against those who had inflicted and coia- 
passion for those who had suffered it? Then he goes 
into an irritating enumeration of the miseries which do 
arise from the punishment, and which do harrow up the 
feelings of men who consider them in detail. This pun- 
ishment is an evil which has subsisted in the eyes of the 
legislature and of that honorable body who constitute 
the officers of the army, and it has not been remedied. 
If there are persons who really feel for the private 
soldier, why not remedy the evil by private representa- 
tion ?' But when, as at this moment, everything depends 
on the zeal and fidelity of the soldier, can you conceive 
that the exclamation ONE THOUSAND LASHES, with 

' This reminds one of the Emperor Alexander's observations when he 
visited England in 1815, that " he thought the English ' Opposition ' a very 
useful institution, but he rather wondered why they did not convey their re- 
monstrances to the King's Ministers in private. 



212 REIGN OF GEORGE III. [1811 

strokes underneath to attract attention, could be for any 
other purpose than to excite disaffection ? Can it have 
any other tendency than that of preventing men from 
entering into the army? Can you doubt that it is a 
means intended to promote the end it is calculated to 
produce? If its object be to discourage the soldiery, I 
hope it will be unavailing. These men who are repre- 
sented as being treated ignominously hav§ presented a 
front — and successfully — to every enemy against which 
they have been opposed. On what occasion do you find 
the soldiery of Great Britain unmanned by the effect of 
our military code? This publication is not to draw the 
attention of the legislature or of persons in authority 
with a view to a remedy, but seems intended to induce 
the military to consider themselves as more degraded 
than any other soldiers in the world — and to make them 
less ready at this awful crisis to render the country that 
assistance without which we are collectively and in- 
dividually undone. I have no doubt that this libel has 
been published with the intention imputed to it, and 
that it is entitled to the character given to it by the in- 
formation.'" 

Nevertheless, to the unspeakable mortification of the 
noble Judge, the jury found a verdict o^ Not Guilty!' 

Such scandal was excited by the mode in which Gov- 
ernment prosecutions for libel were now instituted and 
conducted, that Lord Holland brought the subject 
before the House of Lords, and, after a long speech, in 
which he complained of the power of the Attorney Gen- 
eral to file criminal informations, and the manner in 
which it had recently been abused, moved for a return 
of all informations ex-officio for libel from 1st January, 
1801, to 31st December, 1810. 

Lord Ellenboroiigh: " The motion of the noble Baron 
includes the period during which so humble an indi- 

' This was manifestly usurping the functions of the Jury as to matter of 
fact ; but it was then erroneously supposed to be in conformity to the power 
given by Fox's Libel Act, which is merely for the Judge to deliver his 
opinion on matter of law as in other cases. 

^ 31 St. Tt. 367. This acquittal was mainly produced by the eloquence 
of Mr. Brougham ; but in spite of all his efforts another client was convicted 
at Lincoln before Baron Wood, for publishing the same libel in a country 
newspaper. Rex v. Drakard, 31 St. Tr. 495. 



i8ii.] LORD ELLENBOROUGH. 213 

vidual as myself had the honor of filling the office of 
Attorney General. Whether he means to refer to my 
conduct I know not — but as he made no allusion to it, 
I do not think myself bound to defend what has not 
been attacked ; but I must say with reference to the 
learned gentlemen who succeeded me, that their dis- 
charge of their public duty ought not lightly or cap- 
tiously be censured nor made the subject of invidious 
investigation on grounds of hazardous conjecture. The 
law of informations ex-officio is the law of the land, rest- 
ing on the same authority with the rights and privi- 
leges which we most dearly prize. It is as much law as 
that which gives the noble Lord the right of speaking 
in this House ; it is as much law as the law which puts 
the crown of this realm on the brow of the Sovereign. 
If the noble Lord questions the expediency of the law 
of informations, why not propose that it be repealed ? 
This would be the direct and manly course. I depre- 
cate in this House violent and vague declamations 
[Hear.' hear! from Lord Holland.] I am aware to 
what I subject myself. The noble Lord may call all that 
I have said a mere tirade. \Hear 1 hear ! from Lord 
Holland.] I am used to tumults and alarms — they never 
yet could put me down. Were I to die next moment, 
I will not yield to violence. My abhorrence of the licen- 
tiousness of the press is founded on my love of civil 
liberty. The most certain mode of upsetting our free 
constitution is by generating a groundless distrust of the 
great officers of justice, and teaching the people to de- 
spise the law along with those who administer it. I 
repeat that I know nothing more mischievous in its 
tendency than inoculating the public mind with ground- 
less apprehensions of imaginary evils." 

The violence of this language called forth consider- 
able animadversion from several noble Lords. Lord 
Stanhope declared that he was afraid of entering into 
any controversy with the' "vituperative Chief Justice' 
— justifying himself with the example of a peer cele- 
brated for his politeness, of whom he told this anec- 
dote; Lord Chesterfield, when walking in the street, being 
pushed off the flags by an impudent fellow, who said to 
him, " I never give the walk to a scoundrel," the great 



214 REIGN OF GEORGE III. [1813. 

master of courtesy immediately took off his hat, and 
making a low bow, replied, " Sir, I always do." ' 

Lord Holland : "The noble and learned Chief Justice 
has complained of the vehemence and passion with 
which I have delivered myself; but he should have had 
the charity to recollect that I have not the advantage of 
those judicial habits from which he has profited so 
much. The practice of the duties of the highest crim- 
inal judge and the exercise of temper which those du- 
ties require can alone bring the feelings of men to a per- 
fect state of discipline, and produce even in the delivery 
of the strongest opinions the dignified and dispassionate 
tone which ever adds grace to the noble and learned 
Lord's oratorical efforts, and has so signally marked his 
demeanor in this night's debate." 

Sir James Mackintosh, who was present at this de- 
bate, in giving an account of it, says : " I was much 
delighted with the ingenious, temperate, and elegant 
speech of Lord Holland, on the abominable multiplica- 
tion of criminal informations for libels, and much dis- 
gusted with the dogmatism of Lord Ellenborough's an- 
swer. Lord Holland spoke with the calm dignity of a 
magistrate, and Lord Ellenborough with the coarse vio- 
lence of a demagogue."' 

The Chief Justice's next remarkable appearance in 
the House of Lords, was in a discussion respecting the 
" Delicate Investigation." While he was in the Cabinet, 
in 1806, a commission had been addressed to him and 
several others by George IIL, to inquire into certain 
charges brought forward against the Princess of Wales. 
After examining many witnesses, they presented a re- 
port acquitting her of conjugal infidelity, but stating 
that she had been guilty of great levity of conduct, and 
recommending that she should be admonished to con- 
duct herself more circumspectly in future." These ani- 

' ig Pari. Deb. 129-174. s Life of Mackintosh. 

• I have seen the original draught of the Report in Lord Ellenbo- 
rough's handwriting, and the draught of a second very elaborate Report 
by him upon a communication to the Commissioners from the King. 
Al;er a very long commentary on the evidence of the witnesses, the Com- 
nii'-sioners say that " there are no sufficient grounds for bringing Her 
Royal Highness to trial for adultery, but that she had comported her- 
scii in a manner highly unbecoming her rank and her character.'' Lord 
IJ.enborough appears, throughout the whole affair, to have taken infinite 



[813.J LORD ELLENBOROUGH. 215 

madversions excited the deep resentment of her royal 
Highness and her friends, and were complained of in 
various publications and speeches, which asserted that 
the secret inquiry before the Commissioners had been 
carried on unfairly ; that improper questions had been 
put, and that the evidence had not been correctly taken 
down. Without making any motion, or giving any no- 
tice, the noble and learned Lord rose in his place, and 
thus addressed his brother Peers : — 

" My Lords, various considerations have at different 
moments operated upon my mind, to induce me to for- 
bear the execution of a task which now, after the most 
mature and deliberate consideration, I am compelled to 
perform, as a duty that I owe to my own character and 
honor, as well as to the character and honor of those who 
were joined with me in a most important investigation. 
The first of these considerations was a consciousness of 
rectitude, I hope not presumptuously indulged, which 
made me backward in noticing the slanderous produc- 
tions recently circulated against the conduct of indi- 
viduals employed in situations of the highest trust. To 
have betrayed an anxious irritability of feeling, would 
have appeared to imply an acknowledgment of imper- 
fection among those who have faithfully discharged an 
arduous and painful duty. There are cases where a suf- 
ficient vindication maybe found in the candid judgment 
of mankind, where opportunities of forming an opinion 
not very erroneous are afforded to the public. Such, 
however, is not the situation of the individual who now 
addresses your Lordships. When the exculpation rests 
solely in the hands of the person accused, it becomes 
him, on the credit of the esteem and respect with which 
his assertion has been hitherto received, to employ that 
assertion, given in a manner the most solemn and im- 
pressive, for his own vindication." 

After adverting to his reluctance to run any risk of 
making disclosures contrary to his oath as a Privy Coun- 
cillor, and stating the issuing of the Commission, he 
thus proceeded ■ — 

" In that Commission I found my name included ; but 

pains to get at the truth, and to have been actuated by a most earnest 
desire to do impartial justice to all parties. 



2i6 REIGN OF GEORGE III. [1813. 

the subject of inquiry, the intention to issue the Com- 
mission, and the Commission itself, were all profound 
secrets to me, until I was called upon to discharge the 
high duty that upon me was thus imposed. I felt that 
much was due to this command, and it was accompanied 
with some inward satisfaction that the integrity and zeal 
with which I had endeavored to discharge my public func- 
tions, had made a favorable impression upon the mind of 
my Sovereign ; notwithstanding which, the mode in 
which this command was obeyed has been made the sub- 
ject of the most unprincipled and abandoned slanders. 
It has been said that, after the testimony had been taken 
in a case where the most important interests were in- 
volved, the persons mtrusted had thought fit to fabricate 
an unauthorized document, purporting to relate what 
was not given, and to suppress what was given in evi- 
dence. My Lords, I assert that the accusation is as false 
as hell in every part. What is there, let me ask, in the 
transactions of my past life — what is there in the gen- 
eral complexion of my conduct, since the commence- 
ment of my public career, that should induce any man 
to venture on an assertion so audacious ? That it is des- 
titute of all foundation, would, I trust, be believed even 
without my contradiction ; but where it originated, or 
how it circulated, I know not. I will not trench on the 
decorum that ought to be observed in the proceedings 
of this House further than in such a case is necessary ; 
but I will give the lie to such infamous falsehood, and 1 
will, to the last hour of my existence, maintain the truth 
of that which I know to be founded on fact. It occurred 
to me, my Lords, that, in order to facilitate the proceed- 
ings, and at the same time to conduct them with the 
secrecy that was so important, it would be fit to select a 
person, in whom especial confidence might be reposed, 
for the purpose of recording the examinations, by taking 
down the evidence from the mouth of the witness in the 
most correct form. I thought that both the secrecy and 
accuracy required would be best consulted and secured 
by appointing an honorable and learned gentleman, who 
then held the office of Solicitor General, Sir Samuel 
Rpmilly. On every occasion when testimony was given, 
with only one exception, we had the benefit of his pres- 



i8i3.] LORD ELLENBODOUGH. 217 

ence ; but on that single occasion, whether it was that 
the commissioners found themselves at leisure to pro- 
ceed, or whether they were unwilling that the witnesses 
should be called upon unnecessarily to attend again, I do 
not exactly remember ; but it so happened that we de- 
termined to pursue our inquiries without his aid, for a 
messenger who had been despatched for Sir Samuel 
Romilly returned with information that he could not be 
found. It then occurred to my noble colleagues, and to 
myself, that we could take down the evidence ourselves, 
and, as I was in the particular habit of recording testi- 
mony (discharging, I believe, twice as much of that duty 
as any other individual in the kingdom), it was resolved 
that, on that evening, I should hold the pen. I com- 
plied; and I declare, and make the most solemn assever- 
ation (which I should be happy, were it possible, to con- 
firm and verify under the sacred sanction of an oath), 
that the examination that evening taken down by me, 
proceeded, in every part, from the mouth of the wit- 
ness ; that the testimony, at its termination, was read 
over to the witness ; that the witness herself read and 
subscribed her name to the concluding sheet, as she had 
previously affixed her initials to that on which the evi- 
dence was commenced. Were I to advert to the terms 
in which that evidence was couched, I fear that I should 
be trenching upon the terms of the oath by which my 
duty is bound ; but thus much I may say, upon the char- 
acter of the paper (which I wish could be laid before the 
House without provoking a discussion, or leading to im- 
proper disclosures that I would not for a thousand rea- 
sons have promulgated), that, if it could be inspected, 
the strongest internal evidence would be found upon its 
face, to show that it was a genuine production, as taken 
from the mouth of the witness ; if it could be consulted, 
many interlineations would be noticed, qualifying and 
p.ltering the text according to the wish of the witness, 
,ind every individual reading it, with the application of 
common sense, would find that these alterations could 
only have been made at the time the person was under 
examination. I do not think that I bestow upon my- 
self too great a share of praise, when I say that I may 
take credit to myself at least for accuracy in details of 



ji8 REIGN OF GEORGE III. [1813, 

this kind, and I will venture to maintain that there is 
not in the original document one word which was not 
uttered, approved and signed, after the most deliberate 
consideration, by the witness. 

" My Lords, if I could be guilty of the negligence, or 
rather the wickedness imputed, are my noble colleagues 
and friends so negligent or so wicked as to connive at a 
crime of such unparalleled enormity? I am not aware 
that a syllable the witness wished to add was omitted, 
and I speak from the most perfect recollection and the 
most decided conviction when I say, that the minutes 
made by me contained the whole of the evidence, and 
nothing but the evidence, of the person then under ex- 
amination. I am not in the habit of making complaints 
against publications ; but if in any case it were neces- 
sary, it would be more peculiarly so in the present, . 
where I am charged with a crime not only inconsistent 
with the functions of the high office I hold, but incon- 
sistent with the integrity that, as a man, I should pos- 
sess. Surely, for myself and my noble friends, I may 
be allowed to insist that we anxiously and faithfully dis- 
charged a public duty, and I hope, in the face of the 
House and of the country, we shall stand clear of this 
most base and miscreant imputation. 

" I have heard it said, but the charge can only originate 
in the grossest stupidity, that We, as Commissioners, 
misbehaved ourselves in various respects. Folly, my 
Lords, has said, that in examining the witnesses we put 
leading questions. The accusation is ridiculous — it is 
almost too absurd to deserve notice. In the first place, 
admitting the fact, can it be objected to a Judge that he 
put leading questions ? Can it be objected to persons in 
the situation of the Commissioners that they put leading 
questions? I have always understood, after some little 
experience, that the meaning of a leading question was 
this, and this only, that the Judge restrains an advocate 
who produces a witness on one particular side of a ques- 
tion, and who maybe supposed to have a leaning to that 
side of the question, from putting such interrogatories 
as may operate as an instruction to that witness how he 
is to reply to favor the party for whom he is adduced. 
The counsel on the other side, however,, may put what 



r8i3.] LORD ELLENBOROUGH. 219 

questions he pleases, and frame them as best suits his 
purpose, because theiv the rule is changed, for there is 
no danger that the witness will be too complying. But 
even in a case where evidence is brought forward to sup- 
port a particular fact, if the witness is obviously adverse 
to the party calling him, then again the rule does not 
prevail, and the most leading interrogatories are allowed. 
But to say that the Judge on the bench may not put 
what questions, and in what form he pleases, can only i 
originate in that dullness and stupidity which is the curse ' 
of the age. Folly says again, that the testimony of the ■ 
witness should have been recorded in question and 
answer. When, I ask, was it ever done ? is there a single 
instance of the kind ? will the most gray-headed judicial 
character in this country show a solitary example of the 
kind ? It is impossible ; and undoubtedly the most con- 
venient mode was for the witness to see his evidence in 
one unbroken narrative, without the interruption of 
questions composed of words which he never employed 
— it is the language of the witness and not of the inter- 
rogator that is required. Such accusations are the off- 
spring of a happy union of dullness and stupidity, aided 
by the most consummate impudence that was ever 
displayed. 

" It would, I confess, be a great satisfaction to my 
mind and to those of my noble colleagues, if we had any 
means, without violating sacred and indispensable ob- 
ligations, of attesting the truth of these facts ; but the 
nature of the inquiry forbids it. We cannot produce the 
evidence itself; I dare not give the explanation that 
would set the matter for ever at rest ; and in the situation 
I hold, and under all the circumstances, it is impossible 
that the Prince Regent should be addressed that the 
original document might be laid before the House. 

" My Lords, this malignant and unfounded charge— 
this base and nefarious calumny — is one of the worst 
symptoms of the times in which we live. It shows an 
indifference in the public mind as to truth and falsehood ; 
it originates in malice and is supported by ignorance • 
it is tossing firebrands in all directions, leaving those 
who are in danger from the flames to escape as well as 
they can, sometimes almost by a miracle This, my 



220 REIGN OF GEORGE III. [1816. 

Lords, is one of the most hazardous attemptb ; it is a 
cruel attack upon those who are unable to defend them- 
selves. We have struggled, but I hope not in vain, to 
defeat the nefarious and horrible design. I feel that it 
is impossible to give the accusation a more positive 
denial. I have declared that it is false from the com- 
mencement to the conclusion, and I shall sit down 
ashamed that it has been necessary for me to say any- 
thing : I feel almost ashamed that any vindication was 
required. I do not say that I am personally indifferent 
nn a question of such undoubted magnitude ; but if it 
regarded myself only, I could be well content to leave 
such degraded calumnies to their own refutation. I was 
called upon to discharge a public duty ; that duty I 
assert I discharged faithfully ; and that I took down the 
depositions fairly, fully, and honestly, I protest on my 
most solemn word and asseveration. I have spoken 
merely to vindicate myself and my colleagues. That 
vindication I trust is complete. We only wish to stand 
well in the opinion of our country as honest men who 
have faithfully discharged a great and painful duty ; and 
let it be recollected that, having no means of resorting 
to proof, we are compelled to rest our exculpation on a 
flat, positive, and complete denial." ' 

All candid men believed that the investigation had 
been carried on with perfect fairness — but the violence 
of the noble and learned Lord's vindication was re- 
gretted, and many questioned the soundness of his 
positions as to the unlimited right of a Judge to put 
leading questions, and still more denied that in such an 
inquiry it was proper to give only the substance of the 
evidence of the witnesses, compounding questions and 
answers — instead of writing down the questions and the 
answers at full length, so as to obviate the possibility of 
misrepresentation or mistake. 

For several sessions following, Lord Ellenborough 
took no part in debate upon any political subject, and 
confined his efforts in the House of Lords to a strenuous 
opposition to Bills for amending either the civil or crim- 
inal law, all which he denounced as Jacobinical and 
Revolutionary. 

' 25 Pari. Deb. 207. 



i8i6.] LORD ELLENBOROUGH. 221 

In 1816 he zealously supported the severe Alien Bill, 
which ministers still considered necessary after the re- 
turn of peace ; and, to show that at common law the 
King has a right by the royal prerogative to send all 
aliens out of the kingdom, he cited a petition of the mer- 
chants of London in the reign of Edward I., praying 
that monarch to do so. On a subsequent evening, Earl 
Grey ventured to question the bearing of this precedent, 
which, he said, had been brought forward in " the proud 
display of a noble and learned Lord." 

Lord Ellenborough : " I rise, my Lords, to repel with 
indignation the base and calumnious imputation against 
me by the noble Earl, of having falsified a document, 
namely, the Petition of the City of London to Edward 
L I hold in my hand a copy of that document, and 
its contents will show how unjustly I have been at- 
tacked." 

Having read it in a loud and angry voice, he added in 
a very softened tone as he was about to resume his seat : — 

" I thought it due, my Lords, to my own character to 
make this explanation, and I trusty that T have done it 
without any asperity of language. [A loud laugh from 
both sides of the House.] That laugh awakens a senti- 
ment in my mind which I will not express. All I shall say 
is, that a man who is capable of patiently enduring the 
imputation of having falsified a document is capable of 
that atrocity."' 

Lord Ellenborough's last speech in the House of 
Lords was on the 12th of May, 1817, in opposition 
to Lord Grey's motion for a censure on Lord Sid- 
mouth's circular letter, inviting all the magistrates of 
England to interfere for the purpose of putting down 
seditious publications, and telling them that it was their 
duty to imprison all the authors and vendors who could 
not give bail for their appearance at Quarter Sessions to 
answer indictments against them. Recollecting that he 
owed his promotion as Attorney General and as Chief 
Justice to the Home Secretary, who was now accused, 
and who was generally supposed to have been guilty of 
a great indiscretion, if not of an illegal stretch of au- 
thority, he redeemed the pledge he had given in these 

' 34 Pari. Deb. 1069-1143. 



222 REIGN OF GEORGE III. [1811 

words : " I am yours, and let the storm blow from what 
quarter of the hemisphere it may, you shall always find 
me at your side." The noble and learned Lord now de- 
livered a very long and elaborate argument to prove 
that, by the common law of England, Justices of the 
Peace have power to hold to bail in cases of libel. This 
was answered by Lord Erskine, who insisted that the as- 
sumed power was an entire novelty and a dangerous 
usurpation. The Lords persuaded by the learning and 
eloquence of the Chief Justice, or blindly determined to 
support the Government, rejected the motion by a ma- 
juority of 75 to 19.' 

After the permanent insanity of George IIL and the 
establishment of the Regency, Lord Ellenborough was 
a member of the Queen's Council, to assist her in the 
custody and care of the King's person. In this capacity 
he had a daily report sent to him in a red box, which 
was handed up to him while on the bench, and he fre- 
quently attended meetings of the Council at Windsor. 
Having been absent from one of these, he received the 
following letter from Lord Eldon, which gives an in- 
teresting account of the afflicted monarch and his family 
dyring this calamity : — 

" {Confidential.) 

" My dear Lord, 

" The Archbishop being from town, I trouble you 
with a sketch of yesterday's proceedings at Windsor, 
your absence from which I greatly lamented, especially 
as the King wished to see you, and you would have been 
glad to see him. 

" We had good and bad. Upon our arrival we received 
the daily account signed by all the doctors and Dundas. 
You must see that, it being by far the best account we 
have ever had. They state, I think, that no delusions 
had been betrayed for three days — Bott, the page, 
said none since Tuesday. They stated that, if the 
schemes and plans remained, they remained in a less 
degree than they had been before observed to ex- 
ist ; and they unanimously recommended that the 
King should have greater freedom and liberties, and 
more of communicat/on with others than had been 

' 36 Pari. Deb. 445-516. 



LORD ELLENBOROUGH. 223 

allowed him — that this would try the solidity, and 
enable them to judge of the permanence of his im- 
proved state. 

" I then desired them, by a written question, to specify 
in writing what they recommended, and not to leave us 
to judge of what was to be done under their general re- 
commendation. 

" They recommended — then in writing — unanimously: 

" I. That Colonel Taylor should be with the King, his 
intercourse limited in degree, that is, as I understood it, 
by their prudence. 

" 2. That the King's chaplain should read the daily 
prayers in his room, not his chapel. 

"3. That Lord Arden, Lord St. Helens, and others of 
that description, should visit and walk with him. 

" 4. That he should have his keys restored to him. 

" Whilst they were consulting on these measures, the 
Dukes of York and Kent came to the Council, as we be- 
lieved, by the Queen's desire, to represent that their 
walk had been very uncomfortable ; that the King be- 
trayed no delusion, but that he was very, very full of 
plans and schemes, much more so than he had lately 
been to the Duke of York, and that they were par- 
ticularly alarmed at his conversation about having his 
keys. I should here tell you that the Queen sent for me 
immediately upon my arrival at Windsor, and, in a con- 
versation I had with her Majesty and the Princess 
Augusta, expressed great apprehensions about the keys, 
both representing great improvement in the King. I 
found that this subject had been mentioned on Wednes- 
day to the Council then at Windsor, and that the King 
had learnt that it was under their consideration. The 
Dukes also stated that the King's conversation was 
hurried, and did not admit of their saying one word. 
This was also delivered by the Dukes themselves to Dr. 
Halford, and afterwards to us, and by the Council it was 
all delivered in charge to all the physicians for their 
serious consideration. 

" In the mean time, the Master of the Rolls and I went 
to the King, he having himself desired to see you and 
us. His manner to me was much kinder, and he had in 
the course of the week observed to Willis that he thought 



2 24 REIGN OF GEORGE III. 

me entitled to a belief on his part that I was right in 
what I had done, though he could not make it out how 
I could be so, and why I had not resigned the Seal. 
Willis had told him that I could not resign the Seal, that 
his Majesty was not well enough to accept it on resig- 
nation, and that the Prince, till he was Regent, could 
not have it offered to him, and that therefore it could 
not be resigned till the act his Majesty blamed on my 
part was done. He expressed surprise he had not ad- 
verted to this himself. The Queen or Princess Augusta 
had told me that he studiously called me Lord Eldon, 
and not Chancellor, or to that effect, and that he had 
told his family that when you and Grant and I were with 
him, he had been as reserved as he could towards me, 
and had avoided calling me Chancellor, but that he was 
in good humor again. Both Grant and I thought him 
so : his conversation was calm, quiet, connected, admit- 
ting of free conversation on our part, all the subjects 
good, the whole manner right. I think Grant will tell 
you we left the room sunk with grief that there could be 
anything wrong where all appeared so right. He said 
not a syllable, however, of himself, his situation, or his 
plans, and we understand it to be his determination not 
to make any request of any kind, of anybody, respecting 
himself. Upon our return at the end of three-quarters 
of an hour's visit, which concluded in a dignified bow 
upon Willis's coming in, and a kind speech towards me 
as Chancellor, we found that the doctors were ready with 
their written paper (which you must see), stating that 
upon full consideration of all circumstances, they still 
recommended the measures before mentioned, including 
the restoration of the keys. 

" We were much puzzled, but we all agreed that we 
could not venture to control the doctors' unanimous and 
deliberate advice. 

" We, therefore, in a written paper, advised the 
Queen to restore the keys ;— in that paper stating (for 
her sake) that she had hitherto retained them under our 
advice; and in another paper we directed the physicians, 
if any improper use of the keys was attempted, to inter- 
pose to prevent it, and inform the Council of the oc- 
currence. This was necessary, as the keys open presses 



LORD ELLENBOROUGH. 225 

in which there are papers of consequence, and, it is 
understood, jewels of value. Taylor's attendance is to 
see that nobody sees any papers but the King, T. being 
acquainted with them all ; and he has orders not to obey 
any orders either about papers, jewels, or other things. 
Willis and Bott expressed the utmost confidence that 
the King would do nothing wrong with the keys. Bott 
stated that he could not have answered for that a week 
ago, but all thought the recovery going on very 
rapidly. 

" The prayers were to be said in the private room, 
because the physicians wished that the King should not 
yet go to the chapel, which is upstairs, as that step would 
lead him to think that he was to be up stairs as much as 
he wished. We desired that a particular account might 
be sent us to-day of the effect of all this, which you will 
receive in the course of circulation. I have detailed this 
as accurately as I can remember it, because it's natural 
you should know it, and because it tends to show, I 
think, that attendance at meetings becomes now of much 
importance. One of the doctors observed to the D. of 
M. that, in all this illness, much of improper communi- 
cation as the King had made, he had never said a syllable 
upon state matters. This, I believe, was Baillie. 

" In our papers of yesterday, which upon the Arch- 
bishop's return, you should see, we noticed your absence, 
as we did the Duke of Montrose's formerly, that, if we 
are blamable, it may be recorded that you are not so. I 
have communicated these matters to the Prince last 
night, who was very good-humored and reasonable upon 
them. " Yours, my dear Lord, 

" Eldon." 

When this letter was written Lord Eldon had not 
really been taken into favor by the regent, and, on the 
contrary, he expected to be speedily turned out of office. 
He therefore still clung with tenacity to the forlorn 
hope of the King's recovery, and he was exceedingly 
anxious to have Lord EUenborough's co-operation in 
cas^ there should appear to be any ground for restoring 
his Majesty to the throne. But the Regent soon after 
having for ever renounced " his early friends," Lord 
Eldon changed his tactics, and encouraged the belief 
IV. — 15 



226 REIGN OF GEORGE III. 

that the King was incurably mad. Lord EUenborough 
appears to have refused always to join in any of these 
intrigues, and to have been only solicitous that the truth 
should be disclosed, and that justice should be done to 
the King, to the prince, and to the Nation.' 
' See Lives of Chancellors, ch. 20l. 




CHAPTER LI 

CONCLUSION OF THE LIFE OF LORD ELLENBOROUGH. 

I HAVE now only to mention some criminal cases 
which arose before Lord Ellenborough in his later 
years. Of these the most remarkable was Lord 
Cochrane's, as this drew upon the Chief Justice a con- 
siderable degree of public obloquy, and causing very un- 
easy reflections in his own mind, was supposed to have 
hastened his end. In the whole of the proceedings con- 
nected with it he was no doubt actuated by an ardent 
desire to do what was right, but in some stages of it, his 
zeal to punish one whom he regarded as a splendid de- 
linquent, carried him beyond the limits of mercy and of 
justice. 

Lord Cochrane (since Earl of Dundonald) was one of 
the most gallant officers in the English navy, and had 
gained the most brilliant reputation in a succession of 
engagements against the French. Unfortunately for 
him, he likewise wished to distinguish himself in politics, 
and, taking the Radical line, he was returned to Parlia- 
ment for the city of Westminster. He was a determined 
opponent of Lord Liverpool's administration, and at 
popular meetings was in the habit of delivering har- 
angues of rather a seditious aspect, which induced Lord 
Ellenborough to believe that he seriously meant to abet 
rebellion, and that he was a dangerous character. But 
the gallant officer really was a loyal subject, as well as 
enthusiastically zealous for the glory of his country. He 
had an uncle named Cochrane, a merchant, and a very 
unprincipled man, who, towards the end of the war, in 
concert with De Berengen, a foreigner, wickedly devised 
a scheme by which they were to make an immense for- 
tune by a speculation on the Stock Exchange. For this 
purpose they were to cause a sudden rise in the Funds, 



228 REIGN OF GEORGE III. [1814— 

by spreading false intelligence that a preliminary treaty 
of peace had actually been signed between England and 
France. Everything succeeded to their wishes ; the in- 
telligence was believed, the Funds rose, and they sold 
on time bargains many hundred thousand pounds of 
3 per cents before the truth was discovered. It so 
happened that Lord Cochrane was then in London, was 
living in his uncle's house, and was much in his com- 
pany, but there is now good reason to believe that he 
was not at all implicated in the nefarious scheme. How- 
ever, when the fraud was detected, — partly from belief 
of his complicity, and partly from political spite, he was 
included in the indictment preferred for the conspiracy 
to defraud the Stock Exchange. 

The trial coming on before Lord Ellenborough, the 
noble arid learned Judge, being himself persuaded of 
the guilt of all the defendants, used his best endeavors 
that they should all be convicted. He refused to ad- 
journ the trial at the close of the prosecutors' case, 
about nine in the evening, when the trial had lasted 
twelve hours, and the jury as well as the defendants' 
counsel were all completely exhausted, and all prayed 
for an adjournment. The following day, in summing 
up, prompted no doubt by the conclusion of his own 
mind, he laid special emphasis on every circumstance 
which might raise a suspicion against Lord Cochrane, 
and elaborately explained away whatever at first sight 
appeared favorable to the gallant officer. In conse- 
quence the jury found a verdict of GuiLTY against all 
the defendants. 

Next term Lord Cochrane presented himself in Court 
to move for a new trial, but the other defendants con- 
victed along with him did not attend. He said truly 
that he had no power or influence to obtain their at- 
tendance, and urged that his application was founded on 
circumstances peculiar to his own case. But Lord El- 
lenborough would not hear him, because the other de- 
fendants were not present.' Such a rule had before been 
laid down, but it is palpably contrary to the first princi- 
ples of justice, and it ought immediately to have been 
reversed. 

' 3 Maule and Selwyn, 10, 67. 



1817.J LORD ELLENBOROUGH. 229 

Lord Cochrane was thus deprived of all opportunity 
of showing that the verdict against him was wrong, and, 
in addition to fine and imprisonment, he was sentenced 
to stand in the pillory. Although, as yet, he was gen- 
erally believed to be guilty, the award of this degrading 
and infamous punishment upon a young nobleman, a 
member of the House of Commons, and a distinguished 
naval officer, raised universal sympathy in his favor. 
The Judge was proportionably blamed, not only by the 
vulgar, but by men of education, on both sides in poli- 
tics, and he found, upon entering society, and appearing 
in the House of Lords, that he was looked upon coldly. 
Having now some misgivings himself as to the propriety 
of his conduct in this affair, he became very wretched. 
Nor was the agitation allowed to drop during the re- 
mainder of Lord EUenborough's life : for Lord Coch- 
rane, being expelled from the House of Commons, was 
immediately re-elected for Westminster : having escaped 
from the prison in which he was confined, under his sen- 
tence, he appeared in the House of Commons ; in obe- 
dience to the public voice, the part of his sentence by 
which he was to stand in the pillory was remitted by the 
Crown ; and a Bill was introduced into Parliament alto- 
gether to abolish the pillory as a punishment, on account 
of the manner in which the power of inflicting it had 
been recently abused. It was said that these matters 
preyed deeply on Lord EUenborough's mind, and af- 
fected his health. Thenceforth he certainly seemed to 
have lost the gayety of heart for which he had formerly 
been remarkable." 

In Trinity Term, 1817, there came on, at the King's 
Bench bar, the memorable trial of Dr. James Watson 
for high treason, when the Chief Justice exerted him- 
self greatly beyond his strength, having to contend 
with the eccentric exuberance of Sir Charles Wetherell, 
'i-reatly piqued against the government, because, though 
a steady Tory, he had been passed over when he ex- 
pected to have been appointed Solicitor General, and 

' Many years afterwards, Lord Cochrane's case being reconsidered, he 
was restored to his rank in the navy, he was entrusted with an impor- 
tant naval command, and eulogies upon his services and upon his char- 
acter were pronounced by Lord Brougham and other Peers. 



230 REIGN OF GEORGE III [1814— 

with the luminous energy of Sergeant Copley, who on 
this occasion gained the reputation which in rapid suc- 
cession made him, with universal applause, Chief Justice 
of Chester, Solicitor and Attorney General, Master of 
the Rolls, Lord Chancellor, and Baron Lyndhurst.' 
These two distinguished advocates, cordially concurring 
in the tender of their services, were assigned as counsel 
for the prisoner, and struggled with unsurpassed zeal in 
his defense. Conscientiously believing that the insur- 
rection in which Watson had been engaged had been 
planned by him for the purpose of overturning the 
monarchy, the venerable Judge was honestly desirous of 
obtaining a conviction. But, quantum mutatus ab illo — 
he presented only a ghost-like resemblance of his former 
mighty self. When Sir Charles Wetherell described Cas- 
tle, the accomplice, the principal witness for the Crown, 
as "an indescribable villain," and " a bawdy-house bully," 
the enfeebled Chief Justice exclaimed that " terms so pe- 
culiarly coarse might have been spared out of regard to 
the decorum to the Court," and he animadverted se- 
verely upon some of the gesticulations of the same irre- 
pressible counsel, threatening to proceed to a painful act 
of authority if the offense were repeated ; but the deep, 
impressive tones, and the heart-stirring thoughts, with 
which, from the bench, he used to create awe, and to 
carry along with him the sympathies of the audience, 
were gone ; and, notwithstanding formidable proofs to 
make out a case of treason, an acquittal was early an- 
ticipated. 

The trial having lasted seven long days, the Chief 
Justice was much exhausted, and in summing up he was 
obliged to ask Mr. Justice Bayley to read a considerable 
part of the evidence. His strength being recruited, he 
thus very unexceptionably concluded his charge: — 

" You must now proceed to give that verdict which 
I trust you will give from the unbiassed impulse of 
honest and pure minds acting upon the subject before 
you, and which will have the effect of affording protec- 
tion and immunity to the prisoner at the bar, if he shall 

1 Lord Castlereagh was sitting on the bench during the trial, and ex- 
pressing great admiration of his Whig-Radical eloquence, is said to have 
«dded " I will set my rat-trap for him, baited with Cheshire cheese." 



i8i7.] LORD ELLEA^BOROUGH. 231 

be found entitled to protection and immunity from the 
charges made against him : bat, in another point of view, 
affording also that security to the laws and people of 
this land, and to its government as it subsists under 
those laws, and is administered by the King and the 
two Houses of Parliament; thus satisfying your own 
conscience, and the expectation of your country, un- 
bi£i3sed by any consideration which might affect the im- 
partiality of that justice which you are, under so many 
solemn sanctions, this day required to administer. Gen- 
tlemen, you will consider of your verdict." 

He then asked them whether they would take some 
refreshment before they left the bar, when the foreman, 
in a tone which made the Chief Justice's countenance 
visibly collapse, said, " My Lord, we shall not be long." 
Accordingly, after going through the form of withdraw- 
ing and consulting together, they returned and pro- 
nounced their verdict, to which they had long made up 
their minds, XOT GuiLTY, and thereupon all the other 
prisoners who were to have been tried on the same evi- 
dence were at once acquitted and liberated.' 

In the following autumn. Lord Ellenborough made a 
short tour on the Continent, in the hope of re-establish- 
ing his health. He at first rallied, from change of scene, 
but ere long unfavorable symptoms returned, and he 
seems to have had a serious foreboding that his earthly 
career was drawing to its close. A deep sense of religion 
had been instilled into his infant mind by his pious 
parents ; this had never been obliterated, and now it 
proved his consolation and his support. While at Paris, 
he composed the following beautiful prayer, which may 
be used by all who wish, like him, with a grateful heart, 
to return thanks for the pjist bounties of Providence, 
and, looking forward, to express humble resignation to 
the Divine will : — 

" O God, heavenly Father, by whose providence and 
goodness all things were made and have their being, and 
from whom all the blessings and comforts of this life, 
and all the hopes and expectations of happiness here- 
after, are, through the merits of our blessed Saviour, de- 
rived to us. Thy sinful creatures, I humbly offer up my 
• 32 St. Tr. 1-1074. 



232 REIGN OF GEORGE III. [1817. 

most grateful thanks and acknowledgments for Thy 
Divine goodness and protection, constantly vouchsafed 
to me through the whole course of my life, particularly 
indulging to me such faculties of mind and bodyj and 
such means of health and strength, as have hitherto en- 
abled me to obtain and enjoy many great worldly com- 
forts and advantages. 

" Grant me, O Lord, I humbly beseech Thee, a due 
sense of these Thy manifold blessings, together with a 
steadfast disposition and purpose to use them for the 
benefit of my fellow-creatures, and Thy honor and glory. 
And grant, O Lord, that no decay or diminution of these 
faculties and means of happiness may excite in my 
mind any dissatisfied or desponding thoughts orfeelings, 
but that I may/always place my firm trust and confi- 
dence in Thy Divine goodness ; and whether the bless- 
ings heretofore indulged to me shall be continued or 
cease, and whether Thou shalt give them or take them 
away, I may still, in humble obedience to Thy Divine 
will, submit myself in all things with patience and resig- 
nation to the dispensations of Thy Divine providence, 
humbly and gratefully blessing, praising, and magnifying 
Thy holy name for ever and ever. Amen 

" Paris, 1817." 

When Michaelmas Term returned he was able to take 
his seat in the Court of King's Bench, but he was fre- 
quently obliged to call in the assistance of the puisne 
judges to sit for him at nisi prius. 

The trial of William Hone coming on at Guildhall, al- 
though there was a strong desire to convict him, for he 
had published very offensive pasquinades on George IV., 
the task of presiding was intrusted to Mr. Justice Ab- 
bott. The defendant was charged by three different 
informations with publishing three parodies, entitled 
"The late John Wilkes's Catechism," "The Political 
Litany," and " The Sinecurist's Creed." He was not at 
all supposed to be formidable, not being hitherto known 
as a demagogue ; but in truth he defended himself with 
extraordinary skill and tact, and at the end of the first 
day's trial he obtained a verdict of acquittal amidst the 
shouts of the mob. 

This being related to the enfeebled Chief Justice— his 



t8i7.J LORD ELLENBOROUGH. 



m 



energy was revived, and he swore that at whatever cost 
he would preside in Court next day himself, so that con- 
viction might be certain, and the insulted law might be 
vindicated. Accordingly he appeared in Court pale and 
hollow-visaged, but with a spirit unbroken, and more 
stern than when his strength was unimpaired. As he 
took his place on the bench, " I am glad to see you, my 
Lord Ellenborough," shouted Hone ; " I know what 
you are come here for ; I know what you want." " I am 
come to do justice," retorted the noble and learned Lord ; 
"my only wish is to see justice done." "Is it r.ot 
rather, my Lord," said Hone, " to send a poor book- 
seller to rot in a dungeon ? " 

The subject of this day's prosecution was " The Po- 
litical Litany," and the course taken by the defendant, 
with great effect, was to read a vast collection of similar 
parodies composed by writers of high celebrity, from 
Swift to Canning. Some of these exciting loud laughter 
in the crowd, the indignant Judge sent for the Sheriffs 
to preserve order, and confined them fortheirnegligence. 
In summing up to the jury he reminded them that they 
were sworn on the Holy Evangelists and were bound to 
protect the ritual of our Church from profanation : — 

" There are many things," said he, " in the parodies 
you have heard read which must be considered profane 
and impious, although divines and statesmen maybe the 
authors of them ; but this parody of the defendant 
transcends them all in profanity and impiety. I will 
deliver to you my solemn opinion, as I ain required by 
Act of Parliament to do; under the authority of that 
Act, and still more in obedience to my conscience and 
my God, I pronounce it to be a MOST IMPIOUS and 
PROFANE LIBEL. Hoping and believing that you are 
Christians, I doubt not that your opinion is the same." 

The usual question being put when the jury, after a 
short deliberation, returned into Court — the Chief Justice 
had the mortification to hear the words NOT GuiLTY 
pronounced, followed by a tremendous burst of applause, 
which he could not even attempt to quell. 

But he was still undismayed, and declared that he would 
proceed next day with the indictment on " The Sine- 
curist's Creed." This was a most indiscreet resolution. 



234 REIGN OF GEORGE III. [1817. 

The whole of Hone's third trial was a triumph, the 
jury plainly intimating their determination to find a 
verdict in his favor. He read parallel parodies as on 
the .preceding days, and at last came to one said to be 
written by Dr. Law, the late Bishop of Carlisle, the 
Judge's own father. Lord Ellenborough (in a broken 
voice): " Sir, for decency's sake forbear." Hone with- 
drew it, and gained more advantage by this tasteful 
courtesy than the parody could have brought him, had 
it been ever so apposite. After a similar summing up as 
on the preceding day, there was the like verdict, accom- 
panied with still louder shouts of applause. 

Bishop Turner, who was present at the trial, and ac- 
companied the Chief Justice home in his carriage, related 
that all the way he laughed at the tumultuous mob who 
followed him, remarking that " he was afraid of their 
saliva, not of their bite : " and that passing Charing 
Cross he pulled the check-string, and said, " It just occurs 
to me that they sell the best red herrings at this shop of 
any in London ; buy six." The popular opinion, how- 
ever, was that Lord Ellenborough was killed by Hone's 
trial, and he certainly never held up his head in public 
after. 

When the day again came round for the Judges to 
choose their Summer Circuits, he chose the Home, and 
appointed the days for holding the assizes at each place 
upon it ; but as the time for his departure approached, 
his strength was unequal to the task, and he accepted 
the offer of Lens, a King's Sergeant, an excellent lawyer 
and an accomplished scholar (whom he greatly wished 
to have for his successor as Chief Justice), to go in in his 
stead. On this occasion he wrote the following letter to 
his trusty clerk, who had served him faithfully many 
years : — 

"James's Square. July i, iSl8. 

" Dear Smith, 

" Mr. Sergeant Lens seems to prefer taking his 
own carriage and a pair of horses, with a pair to be put 
before them from his jobman, to having the use of my 
chariot, drivers, and horses which I offered him. John 
will attend him as circuit butler on a horse, with which 
I will provide him. You will attend to all things material 



i8i8.] LORD ELLENBOROVGH. 235 

to the Sergeant's convenient accommodation, and see 
that they be fully supplied in all respects. The Sergeant 
as going in my place will, I presume, sit at each place on 
the circuit on the Civil side or the Crown side, as I shoud 
have done myself, viz., on the Civil side at Hertford, and 
on the Crown side at Chelmsford. You can apply to me 
if any matter of doubt should occur— which, however, I 
do not expect. I am going out of town to Roehampton. 

"Yours, &c„ 

" Ellenborough." 

He afterwards took up his quarters at Worthing, on 
the coast of Sussex, in hopes of benefit from the sea air. 
While there he wrote the following letters to his anxious 
clerk, who had a sincere regard for his kind master, 
besides holding an office worth ;^2,ooo a year on his 
master's life : — 

"September 17th, i8l8. 

" Dear Smith, 

" I think I am better, though but little, on my legs', 
and this fine weather gives me opportunity for beneficial 
exercise and exposure to the fresh air. Charles, who is 
with his family at Bognor, has been over to me here — as 
has Lushington from the same place. I shall be glad to 
see you when we are within distance of each other. 
Keep me properly apprised of your change of place 
from time to time, and believe me, 

" Ever most sincerely, 

" Ellenborough." 

' October 1st, 1818. 

" Dear Smith, 

" I leave this place for Brighton for a month, on 
Saturday morning next. I have not gained much ground 
since I left town, and unless I make a progress which I 
do not expect, I shall not be able to look business in the 
face very soon. I am very lame in one of my legs from 
an erysipelas affection, which has settled there. I have 
likewise a troublesome cough, proceeding from the same 
cause. The Chief Justice of the Common Pleas,' is here, 
and better, upon the whole, than I expected to find him. 
He is, however, very weak in body, and can hardly sus- 

' Sir Vicary Gibbs, who was then flying. 



136 REIGN OF GEORGE III. [1818. 

tain himself against any fatigue. I shall be glad to see 
you. Yours very sincerely, 

'• Ellenborough." 

Before this he had found that all hope of returning to 
the discharge of his public duties must be renounced, 
and he had with firmness made up his mind to seek re- 
pose, that he might prepare for the awful day when he 
himself was to stand before the tribunal of an almighty, 
an omniscient, but merciful Judge. 

The last stage of his judicial career has been thus 
graphically described : — 

" Nature had exhibited evident symptoms of decay 
before his strenuous and ill-judged efforts on the trial of 
Hone ; his frame had been shaken by violent attacks of 
gout, and during the Hilary and Easter terms of 1818 
his absence from Court became more frequent, and his 
calls on the Puisne Judges for assistance in the sittings 
after term were often, though reluctantly, renewed. The 
fretfulness of his manner, and his irritable temperament, 
proved clearly the workings of disease when he occa- 
sionally reappeared in the submissive and silent hall, and 
the frequent interruptions of ' I will not recast the prac- 
tice of the Court ; I do not sit here as a pedagogue to 
hear first principles argued. What are the issues ? What 
can you mean by wandering thus wildly from the record? 
I will not tolerate such aberration : I cannot engender 
or inoculate my mind with a doubt ; I will not endure this 
industry of coughing;' attested his impatient anxiety, 
and fast-growing inability to sustain the toils of office. 
To the last he clung to his situation with adhesive grasp, 
and girded himself with a sort of desperate fidelity to 
perform its duties, at a time when, as he wrote to a 
friend, ' he could scarcely totter to his seat, and could 
only take notes manu lassissimd et corpore imbecillo.' Dur- 
ing the calm of the recess he deluded his spirits with the 
hope that he might resume his duties once more. The 
physicians recommended Bath, but his failing strength 
rendered the journey hazardous ; and just before Mi- 
chaeln-.as term commenced, tardily and with repining, 
he was compelled to announce to the Chancellor his in- 
ability to remain." ' 

' Townsend. vol. i. 389. 



i8i8.] LORD ELLENBOROUGH. 237 

The following is his melancholy missive on this oc- 
casion : — 

"Worthing, September 21, 1818. 

" My dear Lord, 

" The decay of many of my faculties, particularly 
of my eyesight, which I have painfully experienced 
since the beginning of the present year, strongly ad- 
monishes me of the duty which I owe to the public and 
myself on that account ; and as I have now held the 
office of Chief Justice of the Court of King's Bench for 
more than sixteen years, viz: from the 12th day of 
April, 1802, I am entitled, under the Acts of Parlia- 
ment, to request, which I most humbly do, the permis- 
sion of His Royal Highness the Prince Regent for leave 
to retire on the first day of next term, upon that amount 
of pension which by those Acts of Parliament His Royal 
Highness the Prince Regent is authorized to grant to a 
Chief Justice of the King's Bench retiring after a period 
of fifteen years' service. If I had been able to depend 
upon my strength for the due and satisfactory execution 
of my most important office for a longer period, I should 
not now have tendered my resignation to His Royal 
Higness." 

The Chief Justice, without any servility, had always 
been a special favorite at Carlton House, and his prof- 
fered resignation drew forth the following graceful letter 
of condolence from the PRINCE REGENT :— 

" My DEAR Lord, 

" I have only this moment been informed of your 
arrival in town, and I cannot suffer it to pass without 
conveying to you the heart-felt grief with which I re- 
ceived from the Chancellor a few days ago, his report of 
the melancholy necessity under which you have found 
yourself of tendering your resignation, and of your retir- 
ing from public life. As to my own private feelings on 
this most sad occasion, I will not attempt their expres- 
sion ; indeed, that would be quite impossible— but as a 
public man I do not hesitate most distinctly to state, 
that it is the heaviest calamity, above all in our present 
circumstances, that could have befallen the country. 
My Lord, your career, since the moment you took your 
seat, and presided in the high court committed to your 



23S REIGN OF GEORGE III. [1818. 

charge, can admit of but one sentiment, and but of one 
opinion ; it has been g'orious to yourself, and most bene- 
ficial to the nation. You have afforded an example com- 
bining wisdom with every other talent and virtue which 
exalt your character, and place it beyond all praise. 
With these sentiments, and such a picture before me, 
where can I hope to find, or where can I look for that 
individual who shall not leave a blank still in that great 
machine, of which you were the mainspring and bright- 
est ornament ? If, however, my dear friend, there can 
be consolation for us under such afflicting circumstances, 
that consolation is, that you carry with you into your 
retirement the veneration, gratitude, and admiration of 
the good, and the undoubted love and affection of those 
who have had the happiness of associating more in- 
timately with you in private life. I confess that the 
magnitude of the loss we are about to sustain presses so 
heavily upon me, that I have not the power of adding 
more than that my constant and most fervent wishes for 
your health, comfort, and happiness will ever attend you, 
and that I remain always, 

" My dear Lord, 
" Your most sincere and affectionate friend, 

"George P. R. 

" Carlton House, October 18, 1818." 

On the 6th day of November the Chief Justice went 
through the trying ceremony of executing his deed of 
resignation, which cost him a deeper pang than drawing 
his last breath. This world had now closed upon him, 
and before another opened, there was a dreary interval, 
in which, reduced to insignificance, he had the dread of 
suffering severe pain as well as cold neglect. 

His family had flattered themselves that, when re- 
lieved from the anxiety of business, to which he was in- 
adequate, he would rally, and that he might long be 
spared to enliven and comfort them; but the excite- 
ment of office being removed, he only sunk more 
rapidly. 

Having ever been a firm believer of Christianity, he 
was now supported by a Christian's hope. In a short 
month after his resignation it was evident that his end 
was approaching, and having piously received the last 



i8i8.] LORD ELLENBOROUGH. ' 239 

consolations of religion, he calmly expired at his house 
in St. Janies's Square in the evening of Sunday, the 
13th of December, 1818. On the 22d of the same month 
his remains were interred in the cemetery of the Charier 
House, by the side of those of Mr. Sutton, its honored 
founder. The funeral was attended by all the dignitaries 
of the law and msfny distinguished men from other ranks 
of life, and its pomp was rendered more solemn by a 
dense fog, which only permitted to the eye a dim glimpse 
of the procession.' 

On a tablet near the spot where his dust reposes, there 
is the following simple inscription to his memory : — 

' From the family of his clerk, Mr. Smith, I have in my possession the 
originals of the two following letters, which I cannot refrain from copying, 
as they seem to me very creditable to all who are mentioned in them. They 
particularly show the subject of this memoir in a most amiable point of 
view, and proved that if at times he was regardless of giving pain to his 
equals, he must have been uniformly kind to dependents : 

" Lofty and sour to them that loved him not ; 
But to those men who sought him, sweet as summer." 

The first, announcing Lord EUenborough's death to Mr. Smith, is from 
the Honorable Charles Law, his second son, and the other, inviting Mr. 
Smith to the funeral, is from the present Earl of EUenborough : — 

" Southampton Row, 8 o'clock. 
" My dear Friend, 

" It jhas become my melancholy duty to announce to you the death 
of my beloved parent. He breathed his last about six o'clock, without a 
sigh and without a struggle. If you could call on me this evening, it would 
much oblige me. 

■' Yours, very sincerely and faithfully, 

" Chas. E. Law." 

" St. James's Square, Dec. 18, i8i8. 
" My dear Sir, 

" I am sure the long and intimate connection you had with my 
father, and the regard you naturally entertained for him, would make you 
desirous of joining his family in the performance of the last duties to his 
memory ; and I am equally sure, from my knowledge of the gratitude my 
father felt for your very useful and faithful services, and of the esteem in 
which he held your character, that it would have been gratifying to him to 
think that his remains would be attended to the grave by you. Allow me, 
therefore, to request that you will proceed with us from this house on Tues- 
day morning before half-past seven. 

" Very truly and faithfully yours, 

'E. 

" I have great pleasure in communicating to you that my late respected 
father has, in testimony of your long and most faithful services, bequeathed 
to you the watch and gold chain he usually wore, and a small sum for the 
purchase of some memorial of him." 



240 REIGN OF GEORGE III. [1818. 

In the Founder's vault are deposited the remains of 

Edward Law, Lord Ellenborough, 

son of Edmund Law, Lord Bishop of Carlisle, 

Chief Justice of the Court of King's Bench from April 

1802 to November 1818, 

and a Governor of the Charter-House. 

He died December 13th, 1818, in the 6gth year of his age ; 

and in grateful remembrance of 

the advantages he had derived through' life from his 

Education 

upon the Foundation of the Charter-House, 

desired to be buried in this Church. 

His character has been thus drawn by one who knew 
him well : — 

" He was not a man of ambition ; he had still less of 
vanity. He received with satisfaction certainly, but 
without the smallest excitement, the appointment of 
Attorney General, the Chief Justiceship, and the Peerage. 
I never knew any man, except the Duke of Wellington, 
who was so innately just. He thoroughly loved justice 
— strict justice', perhaps, but still justice. He was also 
thoroughly devoted to the performance of his duty. I 
have heard him say that no private consideration could 
absolve a man from the execution of public duty — that 
should the person dearest to him in th.e world die, he 
would go into court next day, if physically capable of 
doing so. When he took as his motto compositumjus fasque 
animi, he stamped his own character upon his shield." 

Of Lord Ellenborough as a Judge little remains to be 
said. Nothwithstanding his defects, which were not 
small, it must be admitted that he filled his high office 
most creditably. He had an ascendency with his brethren, 
with the bar, and with the public, which none of his 
successors have obtained, and since his death his repu- 
tation has in no degree declined.' His bad temper and 
inclination to arrogance are forgotten, while men bear 
in willing recollection his unspotted integrity, his sound 
learning, his vigorous intellect, and his manly intrepidity 
in the discharge of his duty. 

' The unenviable awe which he inspired into his brother Judges may be 
imagined from the following statement of Lord Brougham : " I remember 
being told by a learned Sergeant, that at the table of Sergeant's Inn, where 
the Judges met their brethren of the coif to dine, the etiquette was in those 
days never to say a word after the Chief Justice, nor even to begin any topic 
of conversation. He was treated with more than the obsequious deference 
shown at Court to the Sovereign himself." 



LORD ELLENBOROUGH. 141 

As a legislator his fame depends upon the Act (Lord 
Ellenborough'sAct, 43 Geo. III. c. 58) which goes by his 
name, the only one he ever introduced into parliament 
— by which ten new capital felonies were created, and 
the revolting severity of our criminal code was scandal- 
ously aggravated. Some of these, which before were only 
misdemeanors, might without impropriety have been 
made clergiable felonies, punishable with long imprison- 
ment or transportation ; but punishing them with death 
raised a cry against capital punishment, even in cases ol 
murder, where it is prompted by nature, sanctioned by 
religion, and necessary for the security of mankind. 
However, Lord EUenborough, with many of his con- 
temporaries, thought that the criminal code could not 
be too severe. He strenously opposed all the efforts of 
Sir Samuel Romilly in the cause of humanity, and was as 
much shocked by a proposal to repeal the punishment 
of death for stealing to the value of five shillings in a 
shop, as if it had been to abrogate the Ten Command- 
ments : — 

" I trust," said he, " your Lordships will pause before 
you assent to a measure pregnant with danger to the 
security of property, and before you repeal a statute 
which has been so long held necessary for public security, 
and which I am not conscious has produced the smallest 
injury to the merciful administration of justice. After 
all that has been stated in favor of this speculative 
humanity, it must be admitted that the law as it stands 
is but seldom carried into execution, and yet it ceases 
not to hold out that terror, which alone will be sufficient 
to prevent the frequent commission of the offense. It 
has been urged by persons speculating in modern legis- 
lation, that a certainty of punishment is preferable to 
severity — that it should invariably be proportioned 
to the magnitude of the crime, thereby forming a 
known scale of punishments commensurate with 
the degree of offense. Whatever may be my 
opinion of the theory of this doctrine, I am con- 
vinced of its absurdity in practice Retaining 

the terror, and leaving the execution uncertain and de- 
pendent on circumstances which may aggravate or miti- 
gate the enormity of the crime, does not prove the 
IV — 16. 



242 REIGN OF GEORGE III. 

severity of any criminal law; whereas to remove that 
salutary dread of punishment would produce injury to 
the criminal, and break down the barrier which prevents 
the frequent commission of crime. The learned Judges 
are unanimously agreed \h2X the expediency of justice and 
the public security require there should not be a remis- 
sion of capital punishment in this part of the criminal 
law. My Lords, if we suffer this bill to pass, we shall 
not know where to stand — we shall not know whether 
we are on our heads or on our feet. If you repeal the 
Act which inflicts the penalty of death for stealing to 
the value of five shillings in a shcJp, you will be called 
upon next year to repeal a law which prescribes the pen- 
alty of death for stealing five shillings in a dwelling- 
house, there being no person therein — a law, your Lord- 
ships must know, on the severity of which, and the ap- 
plication of it, stands the security of every poor cottager 
who goes out to his daily labor. He, my Lords, can 
leave no one behind to watch his little dwelling and pre- 
serve it from the attacks of lawless plunderers ; confi- 
dent in the protection of the laws of the land, he cheer- 
fully pursues his daily labors, trusting that on his return he 
shall find all his property safe and unmolested. Repeal 
this law, and see the contrast : no man can trust himself 
for an hour out of doors without the most alarming ap- 
prehensions that on his return every vestige of his prop- 
erty will be swept away by the hardened robber. My 
Lords, painful as is the duty — anxious as the feelings of 
a Judge are — unwilling as he is to inflict the tremendous 
penalties of the law — there are cases where mercy and 
humanity to the few would be injustice and cruelty to 
the many. There are cases where the law must be ap- 
plied in all its terrors. My Lords, I think this, above all 
others, is a law on which so much of the security of man- 
kind depends in its execution, that I should dee77i myself 
neglectful of my duty to the public if I failed to let the 
law take its course." 

The Chief Justice scoffed "at that speculative and 
modern philosophy which would overturn the laws that 
a century had proved to be necessary— on the illusory 
opinions of speculatists." 

" I implore you," he said, in one of his latest ad- 



LORD ELLENBOROUGH. 243 

dresses to the Lords, " not to take away the only se- 
curity the honest and industrious have against the 
outrages of vice and the licentiousness of dishonesty. 
There is a dangerous spirit of innovation abroad on this 
subject, but against which I ever have been, and always 
shall be, a steady opposer. I seek no praise — I want no 
popular applause ; all I wish is, that the world may es- 
teem me as a man who will not sacrifice one iota of 
his duty for the sake of public opinion. Mv Lords, I 
shall never shrink from the fulfillment of the most ar- 
duous task from fear of popular prejudice." 

The degree to which Lord Ellenborough's powerful 
mind was perverted by early prejudice, may be seen 
from the following entry in the Diary of Sir Samuel 
Romilly : — 

" Lord Lauderdale told me that soon after my pam- 
phlet appeared, in 1810, he had some conversation about 
it with Ellenborough, who told him, that though the in- 
stances were very rare, yet it sometimes became neces- 
sary to execute the law against privately stealing in 
shops, and that he had himself left a man for execution at 
Worcester for that offense. The man had, he said, when 
he came to the bar, lolled out his tongue and acted the 
part of an idiot ; that he saw the prisoner was counter- 
feiting idiocy, and bade him be on his guard ; that the 
man, however, still went on in the same way ; where- 
upon Lord Ellenborough, having put it to the jury to 
say whether the prisoner was really of weak mind, and 
they having found that he was not, and having con- 
victed him, left him for execution. Upon which Lord 
Lauderdale asked the Chief Justice what law there was 
which punished with death the counterfeiting idiocy in 
a court, of justice ; and told him that he thought his 
story was a stronger illustration of my doctrine than 
any of the instances which I had mentioned." 

Lord Ellenborough was equally opposed to every im- 
provement in the law of Debtor and Creditor, and 
prophesied the utter ruin of commercial credit and the 
subversion of the empire if the invaluable right of ar- 
resting on mesne process should ever be taken away, or 
the fatal principle of cessio bonorum should ever be re- 
cognized in this country, so as that an honest insolvent 



244 REIGN OF GEORGE III. 

might be entitled to be discharged out of prison on 
yielding up the whole of his property to his creditors.' 

I may perhaps feel some little pride in beholding Eng- 
land, after the passing of bills, which I had the honor 
to introduce into Parliament, to take away " the invalu- 
able right," and to establish "the fatal principle"— 
more wealthy and more prosperous than she ever was 
before. 

Lord EUenborough had seen very little of foreign 
countries, and was rather intolerant of what he con- 
sidered un-English. While in Paris, he went to attend 
a criminal trial in the Cour d'Assizes, but when the in- 
terrogatory of the prisoner began, he made off, saying 
it was contrary to the first principles of justice to call 
upon the accused to criminate himself. He saw still 
stronger reason to be disgusted with their civil proce- 
dure. He had hired a carriage by the day, with a coach- 
man, from the remise. On one of the qiiais the coach- 
man, by furious driving, willfully damaged some crockery- 
ware exposed to sale by an old woman. She screamed ; 
a sergent de ville came up, the carriage was stopped, and 
Milord Anglaise was called upon to pay a large sum of 
money by way of amende. He denied his liability, and 
insisted that, according to the doctrine of Macmanus v. 
Cricket, i East, io6, the only remedy was against the 
coachman himself, or against the keeper of the remise ; 
but he was cast, and had to pay damages and costs. 

The Chief Justice deserves great credit for the exer- 
cise of his influence in the appointment of puisne Judges. 
Lord Chancellor Eldon was in the habit of consulting 
him on this subject, and of being guided by his advice. 
Free from all petty jealousy, he chose for his colleagues 
Bayley, Dampierre, Holroyd, and Abbot." 

He never appeared before the world as an author, and, 
from the want of attention to English composition which 
prevails at English seminaries, he was signally unskillful 
in it. In his written judgments, as they appear iu the 
kw reports, he betrays an utter disregard of rhytkvi, and 

' 19 Pari. Deb. 1169-1172 ; 29 Pari. Deb. 229, 606-7. 

* I have had the opportunity of reading the letters between Lord Eldon 
and Lord EUenborough about the appointment of Judges ; but such cor. 
respondence ought to remain for ever " secret and confidential." 



LORD ELLENBORO UGH. 245 

his hereditary love of parenthesis is constantly breakini? 
out.' ^ 

It was in sarcastic effusions from the bench, and in 
jocular quips, when mixing in society on equal terms 
with his companions, that he acquired his most brilliant 
renown. Westminster Hall used to abound with his 
facetKZ, and some of them (perhaps not the best) are still 
cited. 

A young counsel who had the reputation of being a 
very impudent fellow, but whose memory failed him when 
beginning to recite a long speech which he had prepared, 
having uttered these words— " The unfortunate client 
who appears by me— the unfortunate client who appears 
by me— My Lord, my unfortunate client"— the Chief 
Justice interposed, and almost whispered in a soft and 
encouraging tone — "You may go on. Sir— so far the 
Court is with you." 

Mr. Preston, the famous conveyancer, who boasted 
that he had answered 50,000 cases, and drawn deeds 
which would go round the globe, if not sufficient to 
cover the whole of its surface, having come special from 
the Court of Chancery to the King's Bench to argue a 
case on the construction of a will, assumed that the 
Judges whom he addressed were ignorant of the first 
principles of real property, and thus began his erudite 
harangue — " An estate in fee simple, my Lords, is the 
highest estate known to the law of England." "Stay, 
stay," said the Chief Justice, with consummate gravity, 
"let me take that down." He wrote and read slowly 
and emphatically, " An estate — in fee simple — is — the 
highest estate — known to — the law of England ;" adding, 
" Sir, the Court is much indebted to you for the in- 
formation."' There was only one person present who 

' It is related of his father, the Bishop of Carlisle, that in passing a work 
through the press, the proof-sheets, which were promised to be sent regu- 
larly, soon stopped, and that going to the printing office to remonstrate, the 
Diznl said to him, " Please you, my Lord, your Lordship's MS. has already 
used up all our parentheses, but we have sent to the letter founder's for a 
ton extra, which we expect to be sent in next week." 

* Chief Justice Gibbs once told me this anecdote of Sergeant Vaughan, 
who, although a popular advocate and afterwards made a Judge, was 
utterly ignorant of the rudiments of the law of real property, and terribly 
alarmed lest he should commit some absurd blunder. "He was arguing a 
real property case before me, of which he knew no more than the usher, and 



2 46 REIGN OF GEORGE III. 

did not perceive the irony. That person having not 
yet exhausted the Year Books, when the shades of even- 
ing were closing upon him, applied to know when it 
would be their Lordships pleasure to hear the remainder 
of his argument? Lord Ellenborough : "Mr. Preston, 
we are bound to hear you out, and I hope we shall do 
so on Friday — but, alas ! pleasure has been long out of 
the question." 

Another tiresome conveyancer having towards the 
end of Easter Term occupied the Court a whole day 
about the merger of a term, the Chief Justice said to 
him, " I am afraid. Sir, the Term, although a long one, 
will merge in your argument." 

James Allan Park, who had the character of being very 
sanctimonious, having in a trumpery cause affected great 
solemnity, and said several times in addressing the Jury, 
" I call Heaven to witness — as God is my Judge," &c. — 
at last Lord Ellenborough burst out — " Sir, I cannot 
allow the law to be thus^violated in open Court. I must 
proceed to fine you for profane swearing — five shillings 
an oath." The learned counsel, whose risibility was 
always excited by the jokes of a Chief Justice, is said to 
have joined in the laugh created by this pleasantry. 

Mr. Caldecot, a great Sessions lawyer, but known as a 
dreadful bore, was arguing a question upon the ratability 
of certain lime quarries to the relief of the poor, and con- 
tended at enormous length that, " like lead and copper 
mines, they were not ratable, because the limestone in 
them could only be reached by deep boring, which was 
matter of science." Lord Ellenborough, C. y. : " You 
will hardly succeed in convincing us, Sir, that every 
species of boring is ' matter of science.' " 

he laid down Preston's proposition that ' an estate in fee simple is the 
highest estate known to the law of England.' I, wishing to frighten him, 
pretended to start, and said, ' What is your proposition, brother Vaughan ?' 
when, thinking he was quite wrong and wishing to get out of the scrape, he 
observed, ' My Lord, I mean to contend that an estate in fee simple is one of 
the highest estates known to the law of England — that is, my Lord, that it 
may be under certain circumstances — and sometimes is so.' " But the 
learned Sergeant had good qualities, which rendered him very popular — 
although when he was promoted to the Bench by the interest of his brother 
Sir Henry Halford, physician to George IV., it was said by the wags that 
he had a bejter title than any of his brethren, being a Judge by prescrip- 
tion. 



LORD ELLENBODO UGH. 247 

A declamatory speaker (Randle Jackson, counsel for 
the E. I. Company), who despised all technicalities, and 
tried to storm the Court by the force of eloquence, was 
once, when uttering these words, " In the book of nature, 
my Lords, it is written " — stopped by this question from 
the Chief Justice, " Will you have the goodness to men- 
tion \h^ page. Sir, if you please? " 

A qestion arose, whether, upon the true construction 
of certain tax acts, mourning coaches attending a funeral 
were subject to the post-horse duty? Mr. Gaselee, the 
counsel for the defendant, generally considered a dry 
special pleader, aiming for once at eloquence and pathos, 
observed — " My Lords, it never could have been the 
intention of a Christian legislature to aggravate the 
grief felt by us in following to the grave the remains of 
our dearest relatives, by likewise imposing upon us the 
payment of the post-horse duty." Lord Ellenborough, 
C. y. : " Mr. Gaselee, may there not be some danger in 
sailing up these high sentimental latitudes ? " 

A very doubtful nisi prius decision being cited before 
him, he asked, " Who ruled that?" Being answered 
" The Chief Justice of the Isle of Ely " — he replied — 
" Cite to me the decisions of the Judges of the land — 
not of the Chief Justice of the Isle of Ely " — -adding in 
a stage whisper, " who is only fit to rule — a copybook." ' 

A Quaker coming into the witness box at Guildhall 
without a broad brim or dittoes, and rather smartly 
dressed, the crier put the book into his hand and was 
about to administer the oath, when he required to be 
examined on his affirmation. Lord Ellenborough, asking 
if he was really a Quaker, and being answered in the 
affirmative, exclaimed, " Do you really mean to impose 
upon the Court by appearing here in the disguise of a 
reasonable being?" 

A witness dressed in a fantastical manner having given 
very rambling and discreditable evidence, was asked in 
cross-examination, " What he was ? " Witness : " I em- 
ploy myself as a surgeon." Lord Ellenborough, C. J. : 
" But does any one else employ you as a surgeon f" 

A volunteer corps of Westminster shopkeepers, while 
exercising in Tothill Fields, being overtaken by a violent 

' This was Christian, a far-away cousin of Lord Ellenborough. 



»48 REIGN OF GEORGE III. 

storm of wind and rain, took shelter in Westminster Hall, 
while he was presiding in the adjoining Court of King's 
Bench. Lord Ellenborough, C. J. : " Usher, what is the 
meaning of that disturbance?" Usher: " My Lord, it 
is a volunteer regiment exercising, your Lordship." 
Lord Ellenborough, C. J.: "Exercising! We will see 
who is best at that. Go, Sir, to the Regiment, and in- 
form it, that if it depart not instantly I will commit it to 
the custody of a tipstaff." The noble and learned Lord 
seems to have forgotten his own military enthusiasm 
when he exercised in the awkward squad of the " Devil's 
Own." 

At a Cabinet dinner of " All the Talents " Lord 

being absent, and some one observing that he was 
seriously ill, and like to die : " Die ! " said Lord Ellen- 
borough — " why should he die ? What would he get by 
that ? " 

Henry Hunt, the famous demagogue, having been 
brought up to receive sentence upon a conviction for 
a seditious meeting, began his address in mitigation of 
punishment, by complaining of certain persons who had 
accused him of " stirring up the people by dangerous 
eloquence." Lord Ellenborough, C. J. (in a very mild tone) : 
" My impartiality as a Judge calls upon me to say. Sir, 
that in accusing you Of that they do you great injustice." 

The following dialogue between the same Chief Justice 
and the same demagogue we have on the authority of 
Mr. Justice Talfourd, who was present at it : 

" Lord Ellenborough had come down after an interval, 
during which his substitutes had made slow progress, 
and was rushing through the list like a rhinoceros 
through a sugar plantation, or a Common Sergeant in 
the evening through a paper of small larcenies; but just 
as he had non-suited the plaintiff in the twenty-second 
cause, which the plaintiff's attorney had thought safe 
till the end of the week, and was about to retire to his 
turtle, with the conviction of having done a very good 
morning's work, an undeniable voice exclaimed, ' My 
Lord ! and Mr. Hunt was seen on the floor with his 
peculiar air — perplexed between that of a bully and a 
martyr. The Bar stood aghast at his presumption ; the 
usher's wands trembled in their hands; and the re- 



LORD ELLENBOROUGM. 249 

porters, who were retiring after a very long day, during 
which, though some few City firms had been crushed 
into bankruptcy, and some few hearts broken by the 
results of the causes, they could honestly describe as 
' affording nothing of the slightest interest except to the 
parties,' rushed back and seized their note-books to catch 
any word of that variety of rubbish which is of ' public 
interest.' My Lord paused and looked thunders, but 
spoke none. ' I am here, my Lord, on the part of the 
boy Dogood,' proceeded the undaunted Quixote. His 
Lordship cast a moment's glance on the printed list, and 
quietly said, ' Mr. Hunt, I see no name of any boy Do- 
good in the paper of causes,' and turned towards the 
door of his room. ' My Lord ! ' vociferated the orator, 
' am I to have no redress for an unfortunate youth ? I 
thought your Lordship was sitting for the redress of 
injuries in a court of justice.' — ' O no, Mr. Hunt,' still 
calmly responded the Judge — ' I am sitting at Nisi 
Prius ; and I have no right to redress any injuries, except 
those which may be brought before the jury and me, in 
the causes appointed for trial.' — ' My Lord,' then said 
Mr. Hunt, somewhat subdued by the unexpected amenity 
of the Judge, 'I only desire to protest.' — 'Oh, is that 
all ? ' said Lord Ellenborough : ' by all means protest, 
and go about your business ! ' So Mr. Hunt protested 
and went about his business ; and my Lord went un- 
ruffled to his dinner, and both parties were content." ' 

While the Lord Darnley, against whom Lord Ellen- 
borough had a special spite, was making a tiresome 
speech in the House of Lords, he rose up and said, with 
that quaint and dry humor which rarely suffered his own 
muscles to relax, but loud enough to be heard by three- 
fourths of the peers present, " I am answerable to God 
for my time, and what account can I give at the day of 
judgment if I stay here any longer?" 

A very tedious Bishop having yawned during his own 
speech, Lord Ellenborough exclaimed, " Come, come, 
the fellow shows some symptoms of taste, but this is 
encroaching on our province." 

Of Michael Angelo Taylor, who, though very short 
of stature, was well knit, and thought himself a very 

' Talfourd's " Vacation Rambles.' 



250 REIGN OF GEORGE III. 

great man — Lord Ellenborough said, " his father, the 
sculptor, had fashioned him for a pocket Hercules." 

At the coming in of the "Talents" in 1806, Erskine 
himself pressed the Great Seal upon Lord Ellenborough, 
saying that " he would add to the splendor of his repu- 
tation as Lord Chancellor." Ellenborough knowing 
that, on his own refusal, Erskine was to be the man, ex- 
claimed, " How can you ask me to accept the office of 
Lord Chancellor when I know as little of its duties as 
you do ?" ' 

Being told that the undertaker had made a foolish 
mistake in the hatchment put up on Lord Kenyon's 
house after the death of that frugal Chief Justice, MORS 
Janua Vita, his successor exclaimed " No mistake at 
all, Sir-^there is no mistake — it was by particular direc- 
tions of the deceased in his will — it saved the expense 
of a diphthong!" 

From these sayings it might be thought that he was 
uniformly cynical and even acrimonious, but he spoke 
rather from a love of fun than from any malignity, and 
he had in him a large stock of good humor and bonhomie, 
which, producing little epigrammatic point, is in danger 
of being forgotten. He was an extremely agreeable com- 
panion. " The pungency of his wit," said an old class- 
fellow, "his broad, odd, sometimes grotesque jokes, his 
hearty merriment, which he seemed to enjoy, rather by 
a quaint look and indescribable manner than by any au- 
dible laughing, altogether formed a most lively and de- 
lightful person, whether to hear or see." 

In domestic life Lord Ellenborough was exceedingly 
amiable, though on rare occasions a little hasty. It was 
reported that Lady Ellenborough, by doingwhat all ladies 
then considered very innocent, trying to smuggle some 
lace, caused the family coach to be seized as forfeited, 
and that he calmly said, " We have only to pay the pen- 
alty." But if Rogers is to be believed, he did not show 
such equanimity when he thought that a bandbox had 
been improperly put into the carriage by her Ladyship, 
"^he author of the Pleasures of Memory used often to 
relate the following anecdote : — 

" Lord Ellenborough was once about to go on the cir- 

' Ex rdatione the present Earl of Ellenbough. 



LORD ELLENBOROUGH. 251 

cuit, when Lady EUenborough said that she should like 
to accompany him. He replied that he had no objec- 
tion, provided she did not incumber the carriage with 
bandboxes, which were his utter abhorrence. During 
the first day's journey. Lord EUenborough, happening 
to stretch his legs, struck his foot against something be- 
low the seat. He discovered that it was a bandbox. Up 
went the window and out went the bandbox. The 
coachman stopped, and the footman, thinking that the 
bandbox had tumbled out of the window by some extra- 
ordinary chance, was going to pick it up, when Lord 
EUenborough furiously called out, ' Drive on !' The 
bandbox, accordingly, was lefi by the ditch side. Hav- 
ing reached the county-town where he was to officiate as 
Judge, Lord EUenborough proceeded to array himself 
for his appearance in the Court House. ' Now,' said he, 
' where is my wig — where is my wig ?' ' My Lord,' re- 
plied his attendant, ' it was thrown out of the carriage 
window.' " ' 

Lord EUenborough was above the middfe size, and 
sinewy, but his figure was ungainly, and his walk singu- 
larly awkward. He moved with a sort of semi-rotatory 
step, and his path to the place to which he wished to go 
was the section of a parabola. When he entered the 
court, he was in the habit of swelling out his cheeks by 
blowing and compressing his lips, and you would have 
supposed that he was going to snort like a war horse 
preparing for battle. His spoken diction, although 
always scholar-like, rather inclined to the sesquipedalian ; 
his intonation was deep and solemn, and certain words 
he continued, through life, to pronounce in the fashion 
he had learned from his Cumbrian nurse. These pecu- 
liarities, which were of course well known to the public, 
made him a favorite subject for mimicry. Charles Ma- 
thews, the celebrated comedian, who had unrivaled 
felicity of execution in this line, to the infinite delight 
of a crowded theater, brought the Lord Chief Justice on 
the stage, in the farce of LovE, Law, AND PHYSIC. His 
Lordship did not appear as one of the Dratnatis Personce, 
but Flexible, the Barrister (personated by Mathews), in 
giving an account of a trial in which he had been counsel, 

' Table Talk of Samuel Rogers, p. 197. 



252 REIGN OF GEORGE III. 

having very successf ally taken off Erskine and Garrow, 
when he came to the summing up, in look, gesture, 
language, tone, and accent, so admirably represented the 
Lord Chief Justice of the King's Bench that the audience, 
really believing that they were in the presence of the 
venerable judge, remained in deep and reverential silence 
till he had concluded, and then, after' many rounds of 
applause, made him give the charge three times over. 
Mrs. Mathews, in her entertaining ' Memoirs of her 
Husband,' says, " When he came to the Judge's summing 
up, the effect was quite astounding to him, for he had 
no idea of its being so received. The shout of recognition 
and enjoyment, indeed, was so alarming to his nerves, so 
unlike all former receptions of such efforts, that he re- 
pented the attempt in proportion as it was well taken, 
and a call for it a second time fairly upset him, albeit not 
unused to loud applause and approbation." The Lord 
Chief Justice was exceedingly shocked to find all the 
papers next morning filled with comments on his charge 
in the famous case of Litigant v. Camphor, and in a fury 
he wrote to the Lord Chamberlain, requiring his inter- 
position, and observing that, since the ' Cloud of Aris- 
tophanes,' in which Socrates was ridiculed, there had 
not been such an outrage on public decency. The Lord 
Chamberlain appears immediately to have effected his 
object, in a private audience with Mathews, by a courteous 
representation, without even a hint of authoritative pro- 
ceedings. According to Mr. Mathews, " bis Lordship 
was soon satisfied that he had no occasion to use any 
argument to influence the performer, for Mr. Mathews 
proved to him at once that he had fully resolved, from 
the moment he found his imitation received with such 
extraordinary vehemence, not to repeat it." Nothwith- 
standing urgent and vociferous requests and complaints 
of the audience at subsequent representations of LOVE, 
Law, and Physic, the Judge's charge was heard no 
more in public. But soon afterwards, Mathews received 
an invitation from the Prince Regent to Carlton House, 
and in the course of the evening, H. R. H. began to 
speak of the extraordinary sensation caused by Flexible s 
recent imitation, addding that he would have given the 
world to have been present. Mathews well understood 



LORD ELLEN BOROUGH. 253 

the royal hint, but was much embarrassed, for, glancing 
his eye round, it fell upon the Lord Chamberlain, who 
was looking particularly grave. The Prince, observing 
Mathews' hesitation, said, " Oh, don't be afraid ; we're 
all tiled here. Come, pray oblige me. I'm something 
of a mimic myself. My brother here (turning to the 
Duke of York) can tell you that my Chancellor Thurlow 
is very tolerable, only that I do not like to swear up to 
che mark. It was not so well that you should produce 
Chief Justice Ellenborough on the public stage, but here 
you need have no scruples." " The Prince was in rap- 
tures," says Mrs. Mathews, " and declared himself aston- 
ished at the closeness of the imitation, shutting his eyes, 
while he listened to it with excessive enjoyment, and many 
exclamations of wonder and delight, such as Excellent ! 
Perfect ! It is himself ! The Duke of York manifested his 
approval by peals of laughter, and the Princes afterwards 
conversed most kindly and agreeably on the subject with 
my husband and the high personages present." 

Posterity may have a favorable and correct notion of 
Lord Chief Justice Ellenborough, from a portrait of him 
by Sir Thomas Lawrence, in his judicial robes, which, 
covering his awkward limbs, represents a striking likeness 
of him, and yet makes him appear dignified by portray- 
ing his broad and commanding forehead, his projecting 
eyebrows, dark and shaggy, his stern black eye, and the 
deep lines of thought, which marked his countenance. 

He lived in a handsome style suitable to his station 
and the splendid emoluments which then belonged to 
the Chief Justiceship of the King's Bench. At first 
these did not exceed ;^8,000 a year, but on the death of 
Mr. Way, appointed by Lord Mansfield, the great office 
of Chief Clerk of the King's Bench fell in, which formed 
a noble provision for him and his family.' Soon after 
he was made Chief Justice he left Bloomsbury Square 
for a magnificent house in St. James's Square. To 
give an idea of its size to an old lawyer who lived in 
Chancery Lane, and to whom he was describing it, he 
said, "Sir, if you let off a piece of ordnance in the hall, 

' It is said that he heard of Way's death while he was riding in Hyde 
Park, and he immediately dismounted at a house in Knightsbridge and 
executed a deed, filling up the office, lest he should die before appointing to it 



254 REIGN OF GEORGE III. 

the report is not heard in the bed rooms.'" He likewise 
bought a beautiful villa at Roehampton, which might 
almost rival Lord Mansfield's at Caen Wood. Neverthe- 
less from fees and offices the profits of which he was en- 
titled to turn to his own use, he left above ;^240,ocx3 to his 
family besides the office of Chief Clerk of the King's Bench, 
commuted to his son for ;^7,ooo a year during life. 

Five sons and five daughters survived him. He be- 
queathed ;£'2,ooo a year to his widow, and ;^i 5,000 to 
each of his younger children. The eldest, to whom the 
residue and the great office fell, is the present Earl of 
EUenborough, one of the most distinguished statesmen 
of the nineteenth century, — who, by his eloquence and 
his administrative powers, has added fresh splendor to 
the name which he bears. 

Charles, the second son, having risen by his own merit 
to be Recorder of London, and Member of Parliament 
for the University of Cambridge, died at an early age. 

I have great pleasure in concluding this Memoir of Lord 
Chief Justice EUenborough with a few artless but sweet 
and affecting lines from a Monody on his death, written 
by his favorite daughter Elizabeth, — then a little girl 
in the school-room,— now the Lady Colchester : 

" Ye who have mourned o'er life's departing breath, 
And view'd the sad and solemn scene of death, 
Whilst hanging still o'er him whose soul is fl«d, 
Have ye not felt the awful silent dread, 
Which strikes the soul as we in vain deplore 
His loss, whose presence ne'er can cheer us more ! 
Those eyes are closed, whose fond approving glance 
Could once the bliss of each gay joy enhance ; 
Those lips are seal'd — where truth for ever reign' d. 
Where wisdom dwelt, and piety unfeign'd ! 

* » * * 

Such was the father whom we now bewail, 

But what can tears or poignant grief avail ? 

Can they recall him to this earth again ? 

False, flattering hope ! ah ! wherefore art thou vain ? 

* * * * 

Rais'd above earth and ev'ry earth-born care, 
For Heaven's eternal joys our souls prepare. 
Till ev'ry feeling, taught on high to soar, 
Our hearts shall taste of bliss unknown before. 
' St. James's Square, Dec. iSl8." 

' This was the first instance of a common law Judge moving to the " West 
End." Hitherto all the common law Judges had lived within a radius of 
half a mile from Lincoln's Inn ; but now they are spread over the Regent's 
Park, Hyde Park Gardens, nvA Kensington Gore, 



CHAPTER LII 

[JFE OF LORD TENTERDEN FROM HIS BIRTH TILL HIS 
ELEVATION TO THE BENCH. 

THE subject of this memoir seems to offer an un- 
promising task to the biographer. Lord Ten- 
terden was of very obscure origin ; scarcely an 
anecdote remains of his schoolboy days ; his university 
career, though highly creditable, was not marked by any 
extraordinary incidents ; while at the bar he was more 
distinguished for labor than brilliancy ; he did not even 
attain the easy honor of a silk gown ; till raised to the 
Bench he never held any office more distinguished than 
that of "Devil to the Attorney General;" he neither 
was, nor wished to be, a member of the House of Com- 
mons ; when made a puisne Judge he was believed to 
have reached the summit of his ambition ; afterwards 
unexpectedly placed in the House of Lords, his few 
speeches there were distinguished for flatness or ab- 
surdity ; he was dull in private life as well as in public ; 
and neither crimes nor follies could ever be imputed to 
him. Yet is his career most instructive, and by a writer 
who does not depend upon wonder-stirring vicissitudes, 
it might be made most interesting. The scrubby little 
boy who ran after his father, carrying for him a pewter 
basin, a case of razors and a hairpowder bag, through 
the streets of Canterbury, became Chief Justice of Eng- 
land, was installed among the Peers of the United King- 
dom, attended by the whole profession of the law, proud 
of him as their leader ; and when the names of orators 
and statesmen illustrious in their day have perished with 
their frothy declamations, Lord Tenterden will be re- 
spected as a great magistrate, and his judgments will be 
studied and admired. 

Although there be something exciting to ridicule in 
the manipulations of barbers— according both to works 



256 REIGN OF GEORGE III. 

of fiction and to the experience of life, there is no trade 
which furnishes such striking examples of ready wit, of 
entertaining information, and of agreeable manners.' 
This superiority of barbers may have at first arisen from 
their combination of bleeding and bone-setting with 
shaving and haircutting— but since they ceased to act as 
surgeons it can only be accounted for by their being ad- 
mitted to familiar intercourse with their customers in 
higher station, whom they daily visit — and by the bar- 
ber's shop being the grand emporium for the circulation 
of news and scandal. 

At the corner of a narrow street, opposite to the 
stately western portal of the Cathedral of Canterbury, 
stood a small house, presenting in front of it a long 
pole, painted of several colors, — with blocks in the win- 
dow, some covered with wigs, and some naked, — a sign 
over the door, bearing the words " ABBOTT, Hair- 
dresser," — and on the sides of the door " Shave for a 
penny — hair cut for two pence, and fashionably dressed 
on reasonable terms." This shop was kept by a very de- 
cent, well-be^iaved man, much respected in his neighbor- 
hood, — who/had the honor to trim the whole Chapter 
and to cau^ilower their wigs as they were successively in 
residence,— *and who boasted that he had thrice prepared 
his Grace the Archbishop for his triennial charge to the 
clergy of the diocese. But he was not the pert, garru- 
lous, bustling character which novelists who introduce 
heroes of the razor and scissors love to portray. He was 
depicted by one who had known him well for many 

' One of the most intimate friends I have ever had in the world was 
Dick Danby, who kept a hairdresser's shop under the Cloisters in the Inner 
Temple. I first made his acquaintance from his assisting me, when a stu- 
dent at law, to engage a set of chambers ; he afterwards cut my hair, made 
my bar wigs, and assisted me at all times with his valuable advice. He was 
on the same good terms with most of my forensic contemporaries. Thus 
he became master of all the news of the profession ; and he could tell who 
were getting on and who were without a brief — who succeeded by their 
talents and who hugged the attorneys — who were desirous of becoming 
puisne judges and who meant to try their fortune in Parliament — which of 
the Chiefs was in a failing state of health, and who was next to be promoted 
to the collar of SS. Poor fellow ! he died suddenly, and his death threw 
a universal gloom over Westminster Hall — unrelieved by the thought that 
the survivors who mourned him might pick up some of his business — a con- 
solation which wonderfully softens the grief felt for the loss of a favorite 
Nisi Prius leader. 




(.'IRD Tl-:\ lEKDEN. 



1762.] LORD TENTERDEN. 



257 



years as " a tall, erect, primitive-looking man, with a 
pig-tail, which latterly assumed the aspect of a heavy 
brass knocker of a door." ' From his clerical connection 
he had a profound veneration for the Church, which we 
shall see was inherited by his offspring. His wife, in her 
humble sphere, was equally to be praised, and without 
neglecting her household affairs, she was seldom absent 
from the early service of the Cathedral. 

Struggling with poverty, their virtues were rewarded 
with a son, who thus modestly recorded their merits on 
his tomb, 

" Patre vero prudenti, matre pi& ortus." 

This was Charles, their youngest child, the future Chief 
Justice of England, who was born on the 17th of Octo- 
ber, 1762. 

His infancy offered no omens or indications of his 
future eminence. Though always steady and well be- 
haved, he was long considered a very dull lad, and it is 
said that his father, who intended that he should suc- 
ceed him as a barber, used to express apprehensions lest 
he should be obliged to put the boy to another trade 
requiring less genius. Having learned to read at a dame's 
school, little Charley used to be employed in carrying 
home the wigs that had been properly frizzled and po- 
matumed, and he would accompany his father on the 
morning rounds to be made in the Cathedral close and 
in other parts of the city. We have transmitted to us a 
graphic description of the old gentleman " going about 
with the instruments of his business under his arms, and 
attended frequently by his son Charles, a youth as 
decent, grave, and primitive-looking as himself." ' 

But the youth's obscure destiny, which seemed in- 
evitable, was suddenly changed to one highly intellectual, 
and he became nearly the finest classical scholar and the 
very best lawyer of his generation in England. This he 
owed to his admission on the foundation of the King's 
School, connected with Canterbury Cathedral, which 
had been founded by Henry VIII., and was then taught 
by Dr. Osmund Beauvoir, who was not only a very 
learned man but an admirable teacher, and eager to dis- 

' Gentlemen's Magazine. 
IV.— 17. 



258 REIGN OF GEORGE III. [1775 

cover and to encourage talent in the boys under his care, 
whether of high or humble degree. Young Abbott, 
notwithstanding his demureness, was soon found out by 
this discriminating master, and as great pains were be- 
stowed upon him as if he had been the son of a Duke or 
an Archbishop. We have interesting portraits of him 
in his boyhood by two of his schoolfellows. Says Sir 
Egerton Brydges, who pretended to be a descendant of 
the Plantagenets, or theTudors, and of Charlemagne : 

" From his earliest years he was industrious, appre- 
hensive, regular and correct in all his conduct — even in 
his temper, and prudent in everything. I became ac- 
quainted with him in July, 177S, when I was removed 
from Maidstone to Canterbury school. I was about six 
or seven weeks his junior in age, and was placed in the 
same class with him, in which, after a short struggle, 
I won the next place to him, and kept it till I quitted 
school for Cambridge in autumn, 1780, in my eighteenth 
year. Though we were in some degree competitors, our 
friendship was never broken or cooled. He always ex- 
ceeded me in accuracy, steadiness, and equality of labor, 
while I was more fitful, flighty, and enthusiastic. He 
knew the rules of grammar better, and was more sure in 
any examination or task. He wrote Latin verses and 
prose themes with more correctness, while I was more 
ambitious and more unequal. There was the same dif- 
ference in our tempers and our tastes. He was always 
prudent and calm ; I was always passionate and restless. 
Each knew well wherever the other's strength lay, and 
yielded to it." 

" I remember him well,' added another contemporary, 
who rose to high preferment in the Church, — "grave, 
silent, and demure ; always studious, and well behaved ; 
reading his book instead of accompanying us to play, 
and recommending himself to all who saw and knew 
him by his quiet and decent demeanor. I think his first 
rise in life was owing to a boy by the name of Thurlow, 
an illegitimate son of the Lord Chancellor, who was at 
Canterbury school with us. Abbott and this boy were 
well acquainted, and when Thurlow went home for the 
holidays he took young Abbott with him. He thus be- 
came known to Lord Thurlow, and was a kind of helping 



1 7 75 J LORD TENTERDEN. 



259 



tutor to his son ; and I have always heard and am per- 
suaded that it was by his Lordship's aid he was after- 
wards sent to college. The clergy of Canterbury, however, 
always took great notice of him, as they knew and 
respected his father." 

In his fourteenth year our hero ran a great peril, and 
rnet with a deep disappointment, — which may be con- 
sidered the true cause of his subsequent elevation. The 
place of a singing-boy in the Cathedral becoming vacant, 
old Abbott started his^ son Charles as a candidate to fill 
it. The appointment would have secured to him a 
present subsistence, with the prospect of rising of £^0 a 
year, which he and his family considered a wealthy 
independence for him. His father's popularity among 
the members of the Chapter was so great that his success 
was deemed certain, bwt from the huskiness of his voice 
objections were made to him, and another boy was pre- 
ferred, who grew old enjoying the stipend which young 
Abbott had eagerly counted upon. Mr. Justice Richard- 
son, the distinguished Judge, used to relate that going 
the Home Circuit with Lord Tenterden, they visited the 
Cathedral at Canterbury together, when the Chief Justice, 
pointing to a singing man in the choir, said, " Behold, 
brother Richardson, that is the only human being I ever 
envied : when at school in this town we were candidates 
together for a chorister's place ; he obtained it ; and if 
I had gained my wish, he might have been accompany- 
ing you as Chief Justice, and pointing me out as his old 
schoolfellow, the singing man." 

However, the disappointed candidate, instead of aban- 
doning himself to despair, applied with still greater dili- 
gence to his studies, and his master, proud of his pro- 
ficiency, showed his verses to all the clergy in the neigh- 
borhood, and to others whom he could prevail upon to 
read them, or to hear them recited — boasting that the 
son of the Canterbury barber was qualified to carry off 
a classical prize from any aristocrat versifier at West- 
minster, Winchester, or Eton. 

The crisis of the young man's fate occurred as he 
reached the age of seventeen. He was then Captain of 
the school, and it was necessary that some course should 
be determined upon by which he was to earn his bread. 



26o REIGN OF GEORGE III. [1779. 

His father proposed that he should be regularly bound 
apprentice to the trade in which he had been initiated 
from his infancy, and for which his capacity could no 
longer be questioned. This not only horrified Dr. Beau- 
voir, but caused a shock to the whole Chapter and to all 
the more cultivated inhabitants of Canterbury who had 
heard of the fame of their young townsman, — and a 
general wish was entertained that he might be sent to the 
University. A sum sufficient for his outfit was immediately 
collected in a manner calculated to prevent his feelings 
being hurt by hearing of the assistance thus rendered to 
him ; and the trustees of his school unanimously con- 
ferred upon him a small exhibition in their gift, which 
happened to be then vacant : but this was not sufficient 
for his maintenance while he remained an undergrad- 
uate, and a delicacy existed about, the supply being 
raised by an annual subscription of individuals. For 
some days there was a danger of the plan so creditable 
to Canterbury being entirely defeated, and the inden- 
ture binding the future Chief Justice to the ignoble oc- 
cupation of shaving being signed, sealed, and delivered, 
when the trustees of the school came to a vote, that 
they had power to increase the exhibition from the 
funds of the school — and they did prospectively raise it 
for three years to a sum which, with rigid economy, 
might enable the object of their bounty to keep soul 
and body together till he should obtain his Bachelor's 
degree ; then, by taking pupils or some other expe- 
dient, it was hoped that he might be able to provide for 
himself. 

The bounty of individuals was carefully concealed 
from him, but at a subsequent period of his life, when 
he had been placed as a Judge on the Bench, he showed 
that he well knew the obligation under which he lay to 
the trustees. Attending a meeting of that body of 
which he had been elected a member, among the 
" Agenda," there was " to consider the application from 
an exhibitioner of the school now at Oxford for an in- 
crease of his allowance." The Secretary declared that 
after a diligent search for precedents only one could be 
found, which had occurred many years before. " That 
student was myself," said the learned Judge, and he 



1 78 1.] LORD TENTERDEN. 261 

immediately supplied the required sum from his own 
purse. 

When it was announced to him that he was to be sent 
to the University he was much pleased, without being 
elated; for while he escaped the drudgery and degrada- 
tion of a trade not considered so reputable as that of a 
grocer, from which Lord Eldon had shrunk when in a 
very destitute condition, he foresaw that there might be 
much mortification in store for him, and that although 
all knowledge was to be within his reach, he might ere 
long find it difficult to provide for the day passing over 
him. He had likewise serious misgivings as to how he 
should appear as a gentleman among gentlemen. Hith- 
erto he had only been noticed as the barber's son, and 
in the pressure of business on a Saturday night, when 
he carried home any article to a customer, he had been 
well pleased to receive by way of gratuity a shilling or 
even a smaller coin. Not entering as a servitor, he was 
now to sit at table and to associate on a footing of 
equality with the sons of the prime nobility of Eng- 
land. While struggling forward in life he used to dread 
any allusion to such topics, but in his latter days he 
would freely talk of his first journey from Canterbury to 
Oxford, and the suddenness of his transition into a new 
state of existence. He was, on this occasion, accom- 
panied by a prebendary of the Cathedral, who was a 
Corpus man, and who acted the part of a father to 
him.' 

The following is a copy of his admission to his col- 
lege, and of his matriculation : 

"March 2ist, 1781. Charles Abbott, Kent Scho." 
"Termino Sti. Hilarii, 1781. 
March 24°. 

" C. C. C. Carolus Abbott, 18, Joannis de Civitate 
Cantuariensi Pleb. Fil." " 

■ Samuel Pepys, the famous Diarist, who was the son of a tailor, describes 
' his great embarrassment when, become Secretary to the Admiralty and i 
favoTite to the King and the Duke of York, he met a gentleman m re- 
duced circumstances, to whom, when a boy, he used to carry home fin': 
suits of clothes. Lord Tenterden must have had such renconters, bv.. 
was never known to refer to them. 
■' " A true copy " Philip Bliss. 

" Keeper of the Archives of the University. 



262 REIGN OF GEORGE III. [1781 

He tested his proficiency in classical literature by be- 
coming a candidate for a vacant scholarship. Of this 
contest we have an interesting account in a letter writ- 
ten by him to his schoolfellow, Sir Egerton Brydges, 
who was then entered at Queen's College, Cambridge : 

" Oxford, Sunday, March i8, 1781. 

" Dear Egerton, 

" I have been a week in Oxford, and almost 
finished the examination ; the day of election is next 
Tuesday. I cannot look forward without great dread, 
for my expectations of success are by no means sanguine. 

As yet I have kept to my resolution of drinking 

nothing. How long further I shall I know not, but I 
hope my pride will soon serve to strengthen it. I wish 
Tuesday were over." 

" Monday Night. 

" This has been a heavy day indeed. I would not pass 
another in such anxiety for two scholarships. Disap- 
pointment would be easier borne than such a doubtful 
situation. It is a great pleasure to me to be able to 
reflect that there is one person who will feel for me. 
What happiness would it have been to me had we had 
the good fortune to be both of the same university ! Our 
examination has been very strict. . . . Good night.'" 

"Tuesday, 12 o'clock. 

" At last it is all over, and Now your expectations 

are at the highest 1 am Guess elected. You 

will see from my manner of writing that I am. very much 
pleased — and so in truth I am. The President said to 
me (but don't mention it to any one) that I had gained 
it entirely by my own merit — that I had made a very 
good appearance, and so had all the other candidates. 
" Yours most affectionately, 

" C. Abbott." 

The following shows that he then felt much more ex- 
ultation than on the day of his being made Chief Justice 
of England, when I myself observed him repeatedly yawn 
on the bench from listlessness : 

•' C. C. C, April 3, 1781. 

" Yes, my dear Egerton, it does give me the most 
heartfelt pleasure to hear how kindly my friends rejoice 
in my success. Believe me, Egerton, the chief pleasure 
that I feel on this occasion is reading my letters of con- 



1783-] LORD TENTBRDEN. 263 

gratulation. I needed nothing to assure me of your 
friendship. Had any proof been wanting, you kind letter 
would have been sufficient. The examination was indeed 
a tedious piece of work, but I would undergo twice the 
trouble for the pleasure of knowing that I had answered 
the expectations of my friends. I have received two 
letters from my dearest mother, in which she gives me 
an account how sincerely all my friends at Canterbury 
have congratulated her on my success — and friends so 
much superior to our humble condition, that she says, 
' such a universal joy as appeared on the occasion I be- 
lieve hardly every happened in a town left by a trades- 
man's son.' Who would not undergo any labor to give 
pleasure to such parents ? . . . You have heard me 
wish that I had never been intended for the university. 
It was impious; it was ungrateful: I banish the thought 
for ever from my yeart. Not that I foresee much pleasure 
in a college life, but I know that my present situation is 
perhaps the only comfort to those whose age and mis- 
fortunes have rendered some alleviation of care absolutely 
necessary. Pardon the expression of these sentiments 
to you, and consider that they flow from breast of a 
son. 

" What a dissatisfied wretch I am ! But a little while 
past to be a scholar of Corpus was the height of my am- 
bition ; that summit is (thank Heaven) gained — when 
another and another appears still in view. In a word, I 
shall not rest easy till I have ascended the rostrum in the 
theater." 

His conduct during the whole of his academical career 
was most exemplary. Avoiding all unnecessary expense 
he contrived always to preserve a decent appearance, and 
ke gradually conquered the prejudice created against 
him by the whispefs circulated respecting his origin and 
early occupations. The college tutor was Mr. Burgess, 
afterwards Bishop of Salisbury, who speedily discovered 
his merit and steadily befriended him. 

In the latter part of the eighteenth century, Oxford 
education was at the lowest ebb, and a respectable degree 
might be taken by answering to the question, " Who was 
the founder of this university ? " Alfred the Great ! 
The study of mathematics had fallen into desuetude like 



264 REIGN OF GEORGE III. [1783. 

that of.alchemy. Young Abbott, therefore, had no op- 
portunity of crossing the Asses' Bridge, and through life 
he remained a stranger to the exact sciences. But he 
was saved by the love of classical lore, which he brought 
with him from Canterbury, and in which he found that 
a few choice spirits voluntarily participated. There be- 
ing yet no tripos, the only academical honors that could 
be gained were the Chancellor's two medals for Latin and 
English composition, and these young Abbott had re- 
solved to try for. The siege of Gibraltar had then effaced 
all the disasters and disgraces of the American war, and 
was eagerly exchanged for the capitulation of Saratoga. 
Under date March 5, 1783, Abbott writes to his dear 
friend : — 

" The subjects of our prizes were given out yesterday 
— for the Bachelors, The Use OF History, for the 
Undergraduates, The Seige of Gibraltar-s-Calpe 
Obsessa. I am very much displeased with the latter, 
for it appears to me to be at once unclassical and com- 
monplace — 

' Gun, drum, trumpet, blunderbuss, and thunder !' 

But it will not do to set one's self against it. So I must 
endeavor to make the most of it. Yet I feel my mind 
labor with omens of ill success. It is certainly a noble 
and splendid action. The difficulty will be in separating 
the circumstances peculiar to it from the common occur- 
rences which are to be found as well as in all other ac- 
tions as in this." 

Our aspirant's first attempt was not crowned with the 
success he hoped for ; but he was encouraged to perse- 
vere by reading on his verses when returned to him, 
" quitm proximi accessit " — the mark of approbation be- 
stowed on the second best. More than forty years after, 
when a Judge on the circuit at Salisbury, he met the 
Rev. W. L. Bowles, the poet, who had carried off the 
prize. His Lordship immediately reverted to the liter- 
ary contest in which they had been engaged, and very 
frankly confessed that the rule had been observed, 
DETUR DIGNIORI." 

' The poem may be seen at full length in " Poemata Proaemiis Cancellarii 
Academicis Donata," &c., Oxonise, 1810, vol. i. p. 123. As a specimen, I 



1784.] LORD TENTERDEN. 265 

The subject of the prize poem for the following year 
was Globus Aerostaticus ; Lunardi's voyages in his 
balloon having made many people believe that this ve- 
hicle, although its moving power be the medium in 
which it floats, might be guided like a ship impelled by 
the wind across the ocean ; and that a method had been 
discovered of establishing an easy intercourse, to be 
reckoned by hours, between the most distant nations.' 
Abbott having again invoked the Cantuarensian muse, 
by her inspiration he was successful, and, as victor 
mounting the rostrum in the theater, amidst loud plaud- 
its, recited the following beautiful lines : — 

GLOBUS AEROSTATICUS. 
Pondere quo terras premat aer, igneus ardor 
Quam levis, et quali raptim nova machina nisu 
Emicet in CEelum, et puro circum aethere ludat, 
Pandere jam aggrediar ; juvat altas luminisoras 
Suspicere, et magni rationem exquirere mundi. 
Quippe etenim, ut facili cura, certoque labors 
Heec lustrare queas, miro en ! spectacula ritu 
Circum ulto tibi mille adsunt, rerumque recludens 
Dat natura modum et prmiordia notitiai. 
Namque ubi sulphureis concocta bitumina venis, 
Ausa ultro medite penetrare in viscera terrae, 
Gens hominum effodit, fundo illic semper ab imo 
Exsudare leves asstus, summisque sub antris 
Se furtimglomerareferunt, quin SEepe repenti 
Cum sonitu accensos, et dir« turbine flamms, 

offer a short extract, giving an accosnt of the state of things after the failure 
of the grand assault ; — 

" Nee vero, ut retulit nox exoptata tenebras 
Cessavit furor, ardenti conjecta ruina 
Ssevit adhuc longe missi vis flammea ferri. 
Continue exustse dant moesta incendia naves, 
Umbrosumque vadum fumanti tramite signant. 
Securi Britones geminata tonitrua torquent ; 
Ipse inter medios, altoque serenior ore, 
Dux late Martem spectat sublimis opacum, 
Seu quondam proprio vestitum fulmine numen 
Arma tenens, fatique velut moderatur habenas. 
Audit insolitum sola sub nocte fragorem 
Adversum Libyse littus, longeqiie tremescit 
Montanas inter latebras exsomnis hyaena !" 
• I have often hear my father relate the consternation excited by this 
same Lunardi in the county of Fife. He had ascended from Edinburgh, 
and the wind carried him across the Firth of Forth. The inhabitants of 
Cupar had observed a speck, which was at first supposed to be a bird, grow 
into a large globe, and pass at no great height over their heads, with a man 
in a boat depending from it. Some thought they could descry about him 
the wings of an angel, and believed that the day ofjudgment had arrived. 



266 REIGN OF GEORGE III. [1784. 

Rumpere vi montem, superasque effervere in auras. 
At vero angustis si terrse inclusa cavernis 
Ignea vis longum subter duraverit aevum, 
Quas ibi mox clades eheu ! quantasque videbis 
Faucibus eruptis volvi super sethera flammas ! 
Quid repetam Ausoniis tibi nuper in oris 
Concussse cecidere urbes ? quot corpora letho 
Ipsa etiam horrendis subter distracta ruinis 
Terra dedit ? dum jam luctantem funditus sestum, 
Collectosque vomens ad ccelum efflaverat ignes. 
Usque adeo est qusdam subtilis cssca animai 
Materies, alti quse vulgo ad sidera coeli 
Vi propria violat, et terras contemnit inertes. 

Ergo etiam hos sestus si quis finxisse per artem 
Noverit, et levibus poterit covcludere textis, 
Continue e terris volucrem miro impete cernas 
Ire globum, aeriisque ultro se credere ventis, 
Et jamjamquemagis liquidas conscendere nubes 
'Altius, atque atro penitus se condere coelo. 
Verum ubi jam longo in spatio eluctatus abivit 
Aurai levis sstus, et igneus exiit ardor. 
Tum demum 8etiieriis idem se rursus ab oris 
Demititet sensim, et mortalia regna reviset. 

Quare age, et hoec animo tecum tecum evolvisse sagad 
Cura sit, et csecas meditando exquirere causas. 
Nee sine consilio fieri heec, sine mente rearis, 
Aut rebus non jura dari, verum omnia volvi 
Lege una, et certo sub fcedere labier orbem. 

Principio hanc omnem coeli spirabilis auram, 
Terraique oras, et lati mimora ponti. 
Vis eadem regit, ac uno omnia corpora ritu 
In medium, magna connixa cupidine tendunt, 
Pondere quidque suo ; firmis ita nexibus orbis 
Scilicet, et toto circum se turbine versat. 
Proinde, magis gravibus, densisque ut corpora cuncta 
Seminibus constant, ita per leviora necesse est 
Subsidisse magis ; quels ergo rarior intus 
Textura, et levibus constant qusecunque elementis ; 
Hsec contra e medio, sursum eluctata videntur 
Volvere se supra, et magno circum aethere labi : 
Quinetiam hic, tenuis quanquam et diffusilis, aer, 
Mollia qui rebus dat pitse pabula, et omnem 
Herbarumque lovet prolem, gentemque animantum 
Ipse etiam, immani descendens pondere, terris. 
Incumbit, gravibusque urget complexibus orbem. 
At vero insolitos si qua sibi parte calores 
Hauserit, hac ultro se latius ipse relaxans 
Rarescensqu aer, leviori ita corpore, longe 
Emicat e terra, et coelo spatiatur in alto. 
Hinc adeo expresses nimio sub sole vapores 
Arida se per prata fernut attollere, et alte 
Coeruleam nitidis variare coloribus sethram ; 
Ssepe itaque et subitis incendi ardoribus auras 
Per noctem, et longos in nubila spargier ignesL 
Nonne vides etiam taciti per devia ruris, 



1784.] LORD TENTERDEN. 367 

Agricolae ut parvo glomeratus de lare fumus 
Avolat, et tenuem rotat alte in sidera nubem ? 
Quare etiam, atque etiam, commixto semper ab igni 
Mutaturque aer, alienaque feeder discit, 
Et varium exercet, converse lege, tenorem. 

Scilicet has rerum species, hsec fcedera, secum 
Contemplata diu, et vigilanti mente secuta, 
Hinc etiam ipsa novum simili sub imagine coeptum 
Gens humana movet, curruque evecta per auras 
Torquet iter, ccelumque audet peragrare profundum. 

Ergo etiam hauc ipsam versu me attingere partem 
Ne pigeat ; tenues nee dedignere monendo 
Tu didicisse artes ; quippe ultro carbasa Persse 
Dant levia, et viridi glomerata sub arbore bombyx 
Vellera suspendit ; tu leto tenuia fuco 
Texta line, exiguoque liquescens adsit ab igni 
Et cera, et spissum Panchaio e cortice gluten. 
Maximus hie labor est, haec alti gloria caepi. 
Ni facias, laxi per aperta foramina veli 
Heu ! tibi mox rarse nimium penetrabilis auras 
Vis ibit, frustraque artem tentabis inanem. 

Quod superest, seu jam piceas secta abiete tsedaSi 
Et stipulam crepitantem, et olentis vellera lanse, 
Supponi, rapidumque velis advertier ignem, 
Seu magis ardenti succensas subter oliva 
Lampadas admota placeat suspendere flamma, 
Quiciquid erit, pariter naros bibet ipsa calores 
Ingentemque tumens se machina flectet in orbem. 

Quid dicam, et quales novit tibi chymicus artes? 
Quove modo effusum resoluto e sulphure acetum, 
Et chalybis ramenta, levesque a flumine rores 
Hie docet miscere, atrumque exsolvere in ignem ? 
Nempe ea cum proprio jam collabefacta calore 
In sua se expediunt iterum primordia, et arctos 
Dissolvunt nexus, et vincla tenacia laxant : 
Ignea turn subito rapids tibi vis animai 
Exagitata foras, validis exssstuat ultro 
Vorticibus, clausaque arete fornace remugit ; 
Hanc ipse appositis effunde canalibus, ipse 
Pendentem immissis distende vaporibus orbem. 

Quin age, nee pigro Britonum depressa vetemo 
Corda kiu jaceant, dum late ingentibus ausis 
Gallia se in meritos attoUit sola triumphos. 
Ilia quidem positis ultro pacatior armis, 
Hanc ipsam in laudem, et potioris munera palmaB 
Advocat, ilia etiam faustos jam experta labores 
Omnia magna dedit, certaaque exempla viai 
Attonitam quoties tremefacto pcctore gentem 
Vidit arundinea prslabens Sequana ripa 
Stare, laborantes volventem in corde tumultus, 
Audax dum ante oculos magni moliminis auctor 
Avolat in cffilum, et spissa sese occulit umbra ; 
Aut late aerium faustis aquilonibus asquor 
Tranat ovans, validasque manu moderatur habenas. 
Turn primum superi patefacta in regna profundi 



268 REIGN OF GEORGE III. [1784. 

Mortales oculi, medize e regionibus sethrae, 

Convertere aciem, densis dum obducta tenebris 

Sub pedibus terra atque hominum spatia ampla recedunL 

Nam neque per totum cessabant nubila coelum 

Densari, et vastos umbrarum attoUere tractus, 

Nee cuncti se circum ultrc variare colores, 

Cuncto figurars m late convolvier ora ; 

Praesertim extreme cum jam pendebat Olyrapo 

Sol, transversa rubens ; aut primum Candida Phcabe 

Monstraratque ortum, et cckIo se pura ferebat. 

Atqui illic vacuas nee jam vox, nee sonus aures 

Attingit, sed inane severa silentia regnant 

Undique per spatium, et vario trepidantia motu 

Corda quatit pavor, at que immixto horrore voluptas. 

Hsec adeo, hfec prseclara novse primordia famse 
Gallia, tu posuisti ; hoc jam mortalibus unum 
Defuit, excussis dudum patefacta tenebris 
Alta animi ratio, et vital norma severse 
Eluxere ; patent terrseque, atque sequora ponti, 
Astrorumque viae, atque alti lex intima mundi. 

Jamque adeo et liquidse quse sit tam mobilis aurse 
Natura, et superi passim per inania coeli 
Qua ratione gerant se res, et foedera nectant, 
Explorare datur ;. que pacto rarior usque 
Surgat, et in vacuum sensim se dissipet aer ; 
Frigora quae, ignes lateant ; quanto impete venti 
Hue superis, illuc infernis, partibus instent, 
Convulsumque agitent transverse flamine coelum. 

Ergo etiam humanam, concepto hinc robore, mentem 
Insolito tandem nisu, et majoribus ausis, 
Tollere se cernes, pentitusque ingentia lati 
Aeris in spatia, et magni supera alta profundi 
Moliri imperium ac multa dominarier arte. 

He thus announced his success to his friend Egerton : 

" C. C. C, June 16, 1784. 

" I have delayed writing to you for some time, partly 
because I waited for the decision of the prizes, but prin- 
cipally because I have been constantly employed in 
endeavoring to escape my own thoughts by company 
and every means I could. I am now, however, repaid 
for my anxieties. They said it was a hard run thing. 
There were sixteen compositions sent in. . . . All that 
has happened this morning appears a dream." 

Soon afterthis his joy was turned into mourning by the 
death of his father. H is mother contin ued to keep the shop 
at Canterbury for the sale of perfumery, and he devotedly 
strove to comfort and assist her. For her sake he de- 
clined an advantageous offer to go to Virginia, as tutor 
to a young man of very large fortune there. He was 



1785-] LORD TENTERDEN. 269 

willing to forego a considerable part of his own salary, 
so that £i^o a year might be settled on his mother for 
life. "This," he wrote, "with the little left her by my 
father, would afford her a comfortable subsistence with- 
out the fatigue of business, which she is becoming very 
unable to bear." ' But this condition being declined, the 
negotiation went off. 

The English Essay was still open to him, and the next 
year he likewise carried off this prize. If his performance 
was less dazzling, it gave more certain proof of his nice 
critical discrimination, and, from the exquisite good 
sense which it displayed, of his fitness for the business of 
life. The subject was The Use and Abuse of Satire. 

In this composition he showed that he had already 
acquired (whence it is difficult to conjecture) that terse, 
lucid, correct, and idiomatic English style which after- 
wards distinguished his book on the Law of Ships, and 
his written judgments as Chief Justice of the King's 
Bench. The following is his analytical division of the 
subject, evincing the logical mind which made him a 
great judge : 

" Early use of panegyrical and satiric composition ; 
gradual increase of the latter with the progress of re- 
finement. 

" Different species of satire, invective, and ridicule. 

" General division of satire into personal, political, 
moral, and critical. 

"I. I. Personal satire necessary to enforce obedience 
to general instructions. 2. Its abuse, when the subject 
is improperly chosen, when the manner is unsuitable to 
the subject, and when it proceeds from private animosity. 

"II. I. Political satire, necessary for the general sup- 
port of mixed governments. 2. Its abuse, when it tends 
to lessen the dignity of the supreme authority, to pro- 
mote national division, or to weaken the spirit of 
patriotism. 

" III. I. Moral satire, its use in exposing error, folly, 
and vice. 2. Its abuse, when applied as the test 
of truth, and when it tends to weaken the social af- 
fections. 

" IV. I. Critical satire, its use in the introduction and 

' Letter to Sir Egerton Brydges, 2nd June, 1785. 



270 REIGN OF GEORGE III. \^^^^ 

support of correct taste. 2. Its abuse, when directed 
against the solid parts of science, or the correct pro- 
ductions of genius. 

" Conclusion. Comparison of the benefits and dis- 
advantages derived from satire. Superiority of the 
former." 

His reflections on Personal Satire will afford a fair 
specimen of his manner: 

" Personal satire has been successfully directed in all 
countries against the vain pretenders to genius and 
learning, who, if they were not rendered contemptible 
by ridicule, would too often attract the attention, and 
corrupt the taste, of their age. By employing irony the 
most artful, and wit the most acute, against the un- 
natural and insipid among his contemporaries, Boileau 
drew the affections and judgment of his nation to the 
chaste and interesting productions of Moliere and Racine. 
" Such have been the advantages derived from per- 
sonal satire, but so great on the contrary are the injuries 
resulting from its misapplication, that the legislation of 
all nations has been exerted to restrain it. For if they, 
whose failings were unknown and harmless, be brought 
forth at once to notice and shame, or if, from the weak- 
ness common to human nature, illustrious characters be 
made objects of contempt, the triumphs of vice are pro- 
moted by increasing the number of the vicious, and 
virtue loses much of its dignity and force by being de- 
prived of those names which had contributed to its 
support. Not less injurious to science is the injust 
censure of literary merit, which tends both to damp the 
ardor of genius, and to mislead the public taste. The 
most striking examples of the abuse of personal satire 
are furnished by that nation in which its freedom was 
the greatest. The theaters of Athens once endured to 
behold the wisest of her philosophers, and the most 
virtuous of her poets, derided with all the grossness of 
malicious scurrility. Nor has modern poetry been al- 
together free from this disgrace. Fortunate, however, 
it is that, although the judgment of the weak may be for 
a time misguided, truth will in the end prevail ; the 
respect and admiration due to the names of Burnet and 
Bentley, of Warburton and of Johnson, are row r^o 



1785.] LORD TENTERDEN. 271 

longer lessened by the wit of Swift, or the asperity of 
Churchill. 

" Even where the subject or design is not improperly 
chosen, abuse may still arise from the disposition and 
coloring of the piece. When bitterness and severity are 
employed against men whose failings may be venial and 
light, or ridicule degenerates either into the broad at- 
tacks of sarcastic buffoonery, or the unmanly treachery 
of dark hints and poisonous allusions, not only the par- 
ticular punishment is excessive and unjust, but also gen- 
eral malice is fostered by new supplies of slander." 

In conclusion, he thus strikes the balance between 
the evils inflicted by satire, and the benefits which it 
confers : 

" From this general representation of the good and 
ill effects of satire, we may be enabled to form a com- 
parison of their respective importance. By the im- 
proper exercise of satire individuals have sometimes 
been exposed to undeserved contempt ; nations have 
been inspired with unjustifiable animosity ; immoral sen- 
timents have been infused ; and false taste has received 
encouragement. On the contrary, by the just exertions 
of satire personal licentiousness has frequently been re- 
strained ; the establishments of kingdoms have been 
supported, and the precepts of morality and taste con- 
veyed in a form the most alluring and efficacious. The 
success, however, of all those productions that have not 
been directed by virtue and justice, has been confined 
and transient, whatever genius or talents might be em- 
ployed in their composition ; by the wise among their 
contemporaries they have been disregarded, and in the 
following age they have sunk into oblivion. But the 
effusions of wit, united with truth, have been received 
with universal approbation, and preserved with per- 
petual esteem, their influence has been extended over 
nations, and prolonged through ages. Hence, perhaps, 
we need not hesitate to conclude that the benefits de- 
rived from satire are far superior to the disadvantages 
with regard both to their extent and duration ; and its 
authors may therefore deservedly be numbered among 
the happiest instructors of mankind." 

In 1785 he became B. A. If the modern system of 



«72 REIGN OF GEORGE III. [1785 

honors had been then established, he would no doubt 
have taken a double first class ; but when this degree was 
conferred upon him and others, there was nothing in the 
proceeding to distinguish him from the greatest dunce 
or idler in the whole university. By his prize composi- 
tions and college exercises his fame was established, and 
his fortune was made. All that followed in his future 
career was in a natural sequence, and with the exception 
of the deafness of Sir Samuel Shepherd when Attorney 
General, which led to Abbott being Chief JUSTICE 
instead of remaining a puisne judge, there appeared 
nothing of accident or extraordinary luck in his steady 
advancement. 

From the completion of his second year he had begun 
to have private pupils in classics, whose fees eked out 
sufficiently his scanty allowance. He neither gave nor 
accepted invitations to wine-parties ; his apparel was 
ever very plain, though neat ; and instead of getting in 
debt by buying or hiring hunters, it is a curious fact that 
he never once was on horseback during the whole course 
of his life. In the declining state of his health, shortly 
before his death, he was strongly recommended to try 
horse exercise ; but, as he related to his old friend, 
Philip Williams (who told me), he objected " that he 
should certainly fall off like an ill-balanced sack of corn, 
as he had never crossed a horse any more than a rhi- 
noceros, and that he had become too stiff and feeble to 
begin a course of cavaliering." He added, with a sort 
of air of triumph, " My father was too poor ever to keep 
a horse, and I was too proud ever to earn a sixpence by 
holding the horse of another." ' 

Abbott's college was very desirous of securing his ser- 
vices, and soon after taking his degree he was elected a 
fellow and appointed junior tutor along with Mr. Bur- 
gess, who was delignted to have him as a colleague. 
Under them CORPUS rose considerably in reputation, 
and it was selected by careful fathers who anxiously 
looked out for a reading college. 

While fellow and tutor Abbott was intended for the 
church, and the time now approached when he ought to 

' Yet so gained his livelihood on his arrival in London, a still greater 
m»n— William Shakspeare ! 



1755.] LORD TENTERDEN. 273 

go into orders. His destination was again changed by 
his having become private tutor to a son of the famous 
Mr. Justice BuUer. In a letter to his friend Egerton 
Brydges, dated 22d June, 1785, he says: — 

" I had received a slight hint that the President had 
another offer to make to me. This is the tuition of 
Judge Buller's son, who will com.; from the Charter- 
house to enter at this college next term. I was desired 
to fix the salary ; but upon consultation with Sawkins, 
declined it. The President and Dr. Bathurst, canon of 
Christ Church (who recommended the College to the 
Judge), are disposed to think of ;£'-200 a year, exclusive 
of traveling expenses ; but whether they will propose 
this to the Judge, or desire him to name, I am not cer- 
tain. Mr. Yarde has a large fortune independent of his 
father, for which he changed his name. Sawkins advised 
me (and the President approved) to refuse one hundred 
guineas. Between the two offers there could be no hesi- 
tation ; and indeed my friends here thought the Ameri- 
can place unworthy of my acceptance. If we agree upon 
terms, I propose to spend this summer in France, if the 
Judge wishes his son's tutor to be able to speak French. 
I am particularly pleased with the appearance of this 
offer, as it will give me an opportunity of being much in 
London." 

In a letter of July loth, 1785, he adds: 

" The plan which I mentioned to you in my last re- 
specting Mr. Yarde has been so altered by the Judge, 
that the parts of it from which I promised myself most 
pleasure and advantage are gone. Still the offer is too 
good to be refused. It is to attend him in college only. 
Family circumstances make the Judge wish to have his 
son at home in London as little as possible. The matter 
is not entirely settled ; but for residence with him here 
during the terms I shall have, I believe, a hundred 
guineas a year. If he stays here any vacation, or if I ac- 
company him out (which it seems I shall sometimes do), 
a consideration is to be made for it. Mr. Willoughby, a 
particular friend of the Judge, and an acquaintance of 
President, is commissioned to settle the affair." 

The affair was at last settled satisfactorily, and Abbott 
did act "as Mr. Yarde's private tutor for two or three 
IV.— I s 



274 REIGN OF GEORGE III. [1785- 

years, sometimes accumpanying his pupil to the family 
seat in Devonshire. The quick-sighted Judge soon dis- 
covered Abbott's intellectual prowess, and his peculiar 
fitness for law. He therefore strongly advised him to 
change his profession, and, somewhat profanely, cited to 
him a case from the Year Books, in which the Court laid 
down that " it is actionable to say of an attorney that he 

is a d d fool, for this is saying that he is unfit for the 

profession whereby he lives ; but aliter of a parson, par 
•e que on poet estre bon parson et d— d fool." In serious 

one the legal sage pronounced, that with Abbott's habits 
.if application and clear-headedness his success was 
absolutely certain — saying to him, " You may not pos- 

css the garrulity called eloquence, which sometimes 
.apidly force* up an impudent pretender, but you are 
sure to get early into respectable business at the bar, 
and you may count on becoming in due time a puisne 
Judge." ' Although Abbott had been contented with 
the prospect of obscurely continuing a college tutor till 
he succeeded to a country living, where he might tran- 
quilly pass the remainder of his days, he was not with- 
out ambition ; and when he looked forward to his sitting 
in his scarlet robes at the Maidstone assizes, while citi-. 
zens of Canterbury might travel thither to gaze at him, 
he was willing to submit to the sacrifices, and to run the 
risks which, notwithstanding the sanguine assurances of 
his patron, he was aware must attend his new pursuit. 
He was now in his twenty-sixth year, and he had resided 
seven years in his college. His only certain dependence 
was his fellowship, the income of which was not con- 
siderable ; but from the profits of his tutorship he had 
laid by a little store, which he hoped might not be 
exhausted before it was replenished by professional 
earnings. 

In much perplexity as to the course of study he 
should adopt to fit himself for the bar, he thus addressed 
his faithful friend : — 

' Sir Egerton Brj-d^es, after mentioniiig how Abbott's destiny depended 
on his being tutor to Bailer's son, merely add';, " That learned and sa- 
gacious Judge immediately app.-eciated his solid and strong talents, and 
recommended him to embrace the profession ot tue law, rather than of 
the Church, for which he had hitherto designed hijiielf." The language 
in which the advice was g.vcn rests on tradition. 



1787.] LORD TENTERDEN. 



275 



" C. C. C. June 13 th, 1787. 

" • • • • I can never sufficiently thank you for the 
offer of your house in town. There are two modes in 
which I might enter the profession of the law— that 
which you propose, of residing chiefly in Oxford till I 
am_ called to the bar, which would be the line of study 
which I should choose ; but then what am I to do when 
called to the bar with the enormous expense of going 
circuits, &c.? — and that of going at once to a special, 
pleader, and practicing first below the bar. As far, how- 
ever, as I am able to comprehend this line of practice, 
which seems to me to consist in a knowledge of forms 
and technical minutiae, it would be very unpleasant to 
me, and the necessity of sitting six or eight hours a day 
to a writing-desk renders it totally impracticable, as from 
the peculiar formation of the vessels in my head, writing 
long never fails to produce a headache. Indeed any 
great exertion has always the same effect, so that on this 
account alone I think it will be wiser to choose a more 
quiet profession." 

However, his misgivings were much quieted by a con- 
ference he had with his namesake Abbott, afterwards 
elected Speaker of the House of Commons, and created 
Lord Colchester. Thus, in a letter dated 13th October, 
1787, he writes to Sir Egerton: — 

" I received a visit from Abbott this morning, and we 
held a long conversation together. He spent a year in 
a Pleader's office, and another in a Drau^htman's, and 
uow practices in equity. Very particular reasons de- 
termined him to the Court of Chancery; but he would 
advise me to adopt the common law, and chiefly on this 
account : the practice of the Court of Chancery being 
necessarily confined to certain branches of the law in ex- 
clusion o<*certain others, a man's general professional con- 
nections can contribute less to his assistance, and he has 
less opportunity of distinguishing himself. At the same 
time a person who begins and goes forward in equity 
seldom is able to make himself a perfect master of his 
profession, or qualify himself for many of its highest 
offices. With regard to my own particular case, Abbott 
thinks that, even if no connection determined nae, it 
would be better to take one year to look into books and 



276 REIGN OF GEORGE III. [17S7 

courts a little, than to enter at once into an office where 
I could not possibly understand the business without 
previous knowledge. This you know, is exactly what I 
have always thought, and wished others to think. He 
thinks too, that with proper application, I might get 
sufficient knowledge by working one year in an office 
to enable me to proceed afterwards by myself, and 
doubts not that by the help of two or three introductions 
to men in business, such as Foster, &c.,- 1 should make 
my way without expending so much as six hundred 
pounds. This, you see, is all very flattering. I wish it 
be not too flattering." 

Being thus reassured, on the i6th day of November, 
1787, he was admitted a student of the Middle Temple ; ' 
and he soon after hired a small set of chambers in Brick 
Court. By Judge Buller's advice, to gain the knowledge 
of writs and practice, for which in ancient times some 
years were spent in an Inn of Chancery, he submitted 
to the drudgery of attending several months in the office 
of Messrs. Sandys and Co., eminent attorneys in Craig's 
Court, where he not only learmed from them the dif- 
ference between a Latitat, k Capias, and a Quo Minus, 
but gained the good will of the members of the firm and 
their clerks,' and laid the groundwork of his reputation 
for industry and civility which finally made him Chief 
Justice. 

His next step was to become the pupil of George 
Wood, the great master of Special Pleading, who had 
initiated in this art the most eminent lawyers of that 
generation. Resolved to carry away a good penn\'- 

' " Die 16 Novembris 17S7. 

" Ma'. Carolus Abbott Collegii Corporis Christi apud Oxonienses 
Scholaris, Filius natu secundus Johannis Abbott, nuper de Civitate Can- 
tuariensi, defuncti, admissus est in Societatem Medij Temgli Londini 
specialiter, 

" Et dat. pro fine . . , 4:0:0" 
From the following entry in the books of C. C. C, it appears that at this 
time he had leave of absence from his College : — 

" 1787. Nov. 13. Abbott, a Bachelor of the House, applied for leave of 
absence to keep the London Law Terms. The same was granted (con- 
formably to Statute) by the President, one Dean, one Bursar, anil two other 
Fellows Promotionis causd." 

» " Nor did I not their Clerks invite 

To taste said venison hashed at night." 

PUculi-r's Guidt. 



I7SS.] LORD TENTERDEN. 277 

worth for the 100 guinea fee which he paid, he here 
worked night and day ; he seemed intuitively to catch 
an accurate knowledge of all the most abstruse mysteries 
of the DOCTRINA Placitandi, and he was supposed more 
rapidly to have qualified himself to practice them than 
any man before or since. The great model of perfection 
in this line, in giving an account of his status pupillaris 
under the eminent special pleader, TOM Tewkesbury,' 
sings — 

" Three years I sat his smoky roof in 
Pens, paper, ink, and pounce consumin'." 

But at the end of one year Abbott was told that he 
could gain nothing more by quill-driving under an 
instructor. 

With characteristic prudence he resolved to practice 
as a special pleader below the bar till he had established 
such a connection among the attorneys as should render 
his call no longer hazardous, citing Mr. Law's splendid 
success from following the same course. He accordingly 
opened shop, hired a little urchin of a clerk at ten 
.shillings a week, and let it be understood by Messrs. 
Sandys and all his friends that he was now ready to draw 
Declarations, Pleas, Replications, and Demurrers with 
the utmost despatch, and on the most reasonable terms. 
Clients came in greater numbers than he had hoped for, 
and no client that once entered his chambers ever for- 
sook him. He soon was, and he continued to be, 
famous for " the ever open door, for quick attention when 
despatch was particularly requested, for neat pleadings, 
and for safe opinions." " 

Seven years did he thus go on, sitting all day, and a 
great part of every night, in his chambers — verifying 
the maxim inculcated on City apprentices, " Keep your 
shop and your shop will keep you." He was soon em- 
ployed by Sir John Scott, the Attorney General, in pre- 

' Hero of Anstey's ' Pleader's Guide' a poem which is, I am afraid, now 
antiquated, and which will soon become almost uninti-U:gib)e from the 
changes in our legal procedire, but the whole of which I have hmrd Pro- 
fessor Porson, at the Cider Cellar in Maiden Lane, recite from memory to 
delighted listeners. He concluded by relating, that when buying a «opy of 
it and complaining that the price was very high, the bookselleT said ' Yes, 
Sir, but you 'knovf Law-books are always very dear." 

* Townsend's Twelve Judges, vol. i. 243. 



278 REIGN OF GEORGE III. [1796. 

paring indictments for high treason and criminal inform- 
ations for libel in the numerous state prosecutions which 
were going on during " the reign of terror," and by his 
pupils and his business he was clearing an annual in- 
come of above ;^i,ooo. He had now reached the age 
of thirty-three, which although it is considered in our 
profession as early youth, the rest of the world believe 
to smack of old age." He exclaimed, " Now or never 
must I take the leap into the turbid stream of forensic 
practice, in which so many sink, while a few rari nantes 
in gurgite vasto — are carried successfully along to riches 
and honor." 

Accordingly he was called to the bar in Hilary Term, 
1796, by the Society of the Inner Temple," and a few 
weeks aftejr he started on the Oxford Circuit. I myself 
joined that circuit about fourteen years later, when I 
formed an intimacy with him, which continued till his 
death. I then found him with a junior brief in every 
cause tried at every assize town ; and I heard much of 
his rapid progress and steady success, with a good many 
surmises, among his less fortunate brethren, that it was 
not from merit alone that he had surpassed them. He 
had at once stepped into full business, and this they 

' I remember Mr. Topping giving great offense to the junior members of 
the bar, who expected to be considered young men till fifty-five, by observ- 
ing, v^hen counsel for the plaintiff in a crim. con. cause, that the defendant's 
conduct was the more inexcusable, " as the heyday in the blood was over 
with him, and he had reached the mature age of thirty-three." According 
to Lord Byron, a lady ihinks she has married an aged husband, although 
he may be several years younger than that ; 

" Ladies even of the most uneasy virtue 
Prefer a spouse whose age is under thirty!' 

' The following is a copy from the books of that Society of his admission 
and of his call : 

" INNER TEMPLE. 

" Charles Abbott, second son of John Abbott, late of the City of Can- 
terbury, deceased (who was admitted of the Society of the Middle Temple 
the sixteenth day of November, in the year of our Lord 1787, as by Certifi- 
cate from the Middle Temple appears), admitted of this Society the eighth 
day of May, in the year of our Lord 1793. 

" Calls to the Bar. — Hilary Term, 1796. 
" Mr. John Fuller, ~| 

" Mr. Charles Abbott, I ,,., _, , ._ ,„ 
" Mr, William Lloyd, \ ^^^^ ^*''- '796." 
" Mr. John Wadman, J 



1 798-] LORD TENTERDEN. 



279 



ascribed to the patronage of an old Attorney called Ben- 
jamin Price, who had acted as clerk of assize for half a 
century, and was agent in London for almost all the 
country attorneys in the eight counties which constituted 
the Oxford Circuit. But in truth Abbott was greatly 
superior to all his rivals as a junior counsel; and this 
superiority was quite sufficient to account for his suc- 
cess, although he certainly had been very civil always 
to old Ben, and old Ben had been very loud in sounding 
his praise. He was most perspicacious in advising on the 
bringing and defense of actions ; he prepared the written 
pleadings on either side very skillfully, and without too 
much finesse; he was of admirable assistance at the trial 
to a shallow leader ; he acknowledged that he was an in- 
different hand at cross-examining adverse witnesses, but 
he never brought out unfavorable facts by indiscreet ques- 
tions ; he had great weight with the Judge by his quiet 
and terse mode of arguing points of law arising at nisi 
prius; and if a demurrer, a motion in arrest of Judgment, 
a special case, a special verdict, or a writ of error was to 
be argued in banc, he was a full match for Holroyd, 
Littledale, or Richardson. 

In about two years after his call a deep sensation was 
produced by the unexpected prospect of an opening for 
juniors on the Oxford Circuit. It was the custom in 
those days, that while the Judges went all the way round 
in their coaches and four, the counsel journeyed on horse- 
back. Abbott refused to cross the most sedate horses 
which were offered to him, from the certain knowledge 
that he must be split ; but he took it into his fancy that 
it would be a much more easy matter to drive a gig, 
although to this exercitation he was equally unaccus- 
tomed. As far as Gloucester, after some hair-breadth 
escapes, he contrived to get, without fracture or con- 
tusion ; but in descending a hill near Monmouth his 
horse took fright, he pulled the wrong rein, he was 
upset, and, according to one account, "he died imme- 
diately from a fracture of the skull," and according to 
another, " he was drowned in the Wye." The news was 
brought to the assembled barristers at their mess, and 
all expressed deep regret. Nevertheless the brightened 
eyes and flickering smiles of some led to a suspicion that 



zSo RKIGN OF GEORGE III [i8a? 

the dispersion of briefs might be a small recompense for 
their heavy loss. It turned out that there had been con- 
siderable exaggeration as to the fatal effect of Abbott's 
overturn ; but in truth his leg was broken in two places, 
and he had received very severe injury in other parts 
of his body — so that from this accident he was per- 
manently lame, and he had a varicose vein in his fore- 
head for the rest of his days. Although he was able in 
a few weeks to return to business, his constitution ma- 
terially suffered from this shock, and the inability to take 
exercise which it superinduced. 

While flourishing on the circuit he had as yet very 
slender employment at Guildhall, and he felt a great 
desire to participate in the commercial business there, 
which is considered the most creditable and the tnost 
lucrative in the courts of common law. With this view, 
in spite of the sneers of Lord Ellenborough at book- 
writing lawyers, by the advice of Sir John Scott, who 
had become his avowed patron, he composed and pub- 
lished a treatise ' On Merchants' Ships and Seamen.' 
In no department does English talent appear to such 
advantage as in legal literature ; and we have gone on 
from bad to worse in proportion as method and refine- 
ment have advanced elsewhere. Bracton's work, Dc 
Legibus et Consuetudinibus Anglice, written in the reign 
of Henry III., is (with the exception oi Blackstones Com- 
mentaries) more artistically composed and much pleas- 
anter to read, than any law-book written by any 
Englishman down to the end of the reign of George III. 
— while we were excelled by contemporary juridical 
authors not only in France, Italy, and Germany, but 
even in America. Abbott did a good deal to redeem us 
from this disgrace. Instead of writing all the legal 
dogmas he had to mention, and all the decisions in sup- 
port of them, on separate pieces of paper, shaking them 
in a bag, drawing them out blindfold, and making a 
chapter of each handful, connecting the paragraphs at 
random with conjunctives or disjunctives (" And," " So," 
" But," " Nevertheless") — he made an entirely new and 
masterly analysis of his subject ; he divided it logically 
and lucidly ; he laid down his propositions with pre- 
cision ; he supported them by just reasoning, and he 



i8o2.J LORD TENTERDEN. 



281 



fortified them with the dicta and determinations of 
jurists and judges methodically arranged. His style, 
clear, simple, and idiomatic, was a beautiful specimen of 
genuine Anglicism. The book came out in the year 
1S02, dedicated (by permission) to the man who had 
suggested the subject to him— now become Lord Chan- 
cellor Eldon. Its success was complete. Not only was 
it loudly praised by all the Judges, but by all the City 
attorneys, and, ever after, the author was employed in 
almost all the charter-party, policy, and other mercantile 
causes tried at Guildhall. Nay, the fame of the book 
soon crossed the Atlantic, although it was for some time 
ascribed to another; for, as I have heard the true author 
relate with much glee, the first edition, reprinted at New 
York, was announced in the title-page to be by " the 
Right Honorable Charles Abbott, Speaker of 
THE House of Commons in England." This was 
his distinguished namesake, Lord Colchester, who had 
been at the bar, and who was complimented by the 
American editor for employing his time so usefully during 
the recess of Parliament.' 

Our hero was now as eminent and prosperous as a 
counsel can be at the English Bar, who is not a leader — 
either with a silk gown as the ordinary testimonial of his 
eminence — or, if this for an>- reason be withheld from 
him, dashing into the lead in bombazeen, like Dunning, 
Brougham, and Scarlett.' Abbott wore the bombazeen 
quite contentedly, and shrunk from everything that did 
not belong to the subordinate duties of the grade of the 
profession to which this costume is supposed to be ap- 
propriated. Yet both for profit and position he was 
more to be envied than most of those who sat within the 
bar, and whose weapon was supposed to be eloquence. 
He was a legal pluralist. His best appointment was that 
of counsel to the Treasury, or rather " Devil to the At- 
torney General " — by virtue of which he drew all in- 
formations for libel and indictments for treason, and 

' Our legal literature has likewise been greatly indebtivV to the admirable 
works of Lord 9t. Leonards on " Vendors and Purchasers " ."ind on " Powers." 

* Dunning always wore stuff, except during the short time w'l-en he was 
Solicitor General. The two others were in the full lead Ion*; tofo"-^ t!»ey 
were clothed in silk. I myself led the Oxford Circuit in bi-)iub<u.e»-» ♦.>! 
three years. 



282 REIGN OF GEORGE III. [1802— 

opened the pleadings in all Government prosecutions. 
Next he was counsel for the Bank of England, an office 
which, in the days of one pound notes, when there were 
numerous executions for forgery every Old Bailey 
Session, brought in enormous fees. He was likewise 
standing counsel for a number of other corporations and 
chartered companies, and being known to be a zealous 
churchman as well as good ecclesiastical lawyer, he had. 
a general retainer from most of the Prelates, and Dean 
and Chapters in England. Erskine in all his glory never 
reached ;^I0,000 a year; yet Abbott, " Leguleius qui- 
dam," is known in the year 1807, to have made a return 
to the income-tax of £%,026 5j. as the produce of his 
professional earnings in the preceding year, and he is 
supposed afterwards to have exceeded that amount. 

I believe that he never addressed a jury in London in 
the whole course of his life. On the circuit he was now 
and then forced into the lead in spite of himself, from all 
the silk gowns being retained on the other side, — and on 
these occasions he did show the most marvelous inap- 
titude for the functions of an advocate, and almost always 
lost the verdict. This partly arose from his power of 
discrimination and soundness of understanding, which, 
enabling him to see the real merits of the cause on both 
sides, afterwards fitted him so well for being a Judge. I 
remember a Sergeant-at-law having brilliant success at 
the bar from always sincerely believing that his client was 
entitled to succeed, although when a Chief Justice, he 
proved without any exception, and beyond all comparison, 
the most indifferent Judge who has appeared in West- 
minster Hall in my time. Poor Abbott could not struggle 
with facts which were decisive against him, and if a well- 
founded legal objection was taken, recollecting the 
authorities on which it rested, he betrayed to the pre- 
siding Judge a consciousness that it was fatal. His 
physical defects were considerable, for he had a husky 
voice, a leaden eye, and an unmeaning countenance. 
Nor did he ever make us think only of his intellectual 
powers by any flight of imagination or ebullition of 
humor, or st-roke of sarcasm. But that to which I chiefly 
ascribed his failure was a want of boldness arising from 
the recollection of his origin and his early occupations. 



i8t6.] LORD TEA'TERDEN. 283 

" He showed his blood." Erskine undoubtedly derived 
great advantage from recollecting that he was known to 
be the son of an Earl, descende'd from a royal stock. 
Johnson accounts for Lord Chatham's overpowering 
vehemence of manner from his having carried a pair of 
colors as a cornet of horse. Whether Abbott continued 
to think of thi razor-case and pewter basin I know not ; 
but certain it is there was a most unbecoming humility 
and self-abasement in his manner, which inclined people 
to value him as he seemed inclined to value himself 
Called upon to move in his turn when sitting in court 
in term time, he always prefaced his motion with " I 
humbly thank your Lordship." I remember once when 
he began by making an abject apology for the liberty he 
was taking in contending that Lord Ellenborough had 
laid down some bad law at nisi prius, he was thus con- 
temptuously reprimanded : " Proceed, Mr. Abbott, pro- 
ceed ; it is your right and your duty to argue that I mis- 
directed the jury, if you think so." 

He had apprehensions that he could not remain much 
longer stationary at the bar. He said to me that if he 
were sure of having the second brief in a cause he would 
never wish to have the first, but that he might be driven 
to hold the first if he could not have thesecond. Soon 
after this display of rising spirit he had a great opportu- 
nity of gaining distinction, for he was called upon to 
lead a very important Quo Warranto cause at Hereford, 
on which depended the right of returning to Parliament 
a member for a Welsh borough. But nothing could 
rouse him into energy, and he had a misgiving that the 
proper issue was not taken on the 7th replication to the 
lOth plea. When he had been addressing the Jury as 
leader for half an hour, a silly old barrister of the name 
of Rigby came into Court, and when he had listened for 
another half hour, believing all this was preliminary to 
Dauncey or Sergeant Williams acting the part of leader 
and explaining what the case really was about, he inno- 
cently whispered in my ear, " How long Abbott is in 
opening the pleadings in this case !" The verdict going 
against him, a new trial was to be moved for next term 
— when he had not the courage to make the motion him- 
self but insisted that it should be made by Scarlett, of 



284 REIGN OF GEORGE III. [1802— 

the Northern Circuit, who was still practicing without 
the bar in a stuff gown like himself. 

In 1808, when Mr. Justice Lawrence differed with 
Lord Ellenborough, and retired into the Common Pleas, 
Abbott had declined the offer of being made a Puisne 
Judge, on account of the diminution of income which the 
elevation would have occasioned to him — but soon after 
I joined the Circuit I found that he earnestly longed for 
the repose of the Bench, and he was much chagrined 
that his patron. Lord Eldon, did not renew the offpr to 
him. Sir Egerton Brydges, who was still more in his 
confidence, thus writes: "For twenty years he worked 
at the bar with steady and progressive profit and fame, 
but with no sudden bursts and momentary blaze, till his 
health and spirits began to give way. I well remember, 
in the year 1815, his lamenting to me in a desponding 
tone that his eyesight was impaired, and that he had 
some thoughts of retiring altogether from the profes- 
sion. I dissuaded him, an^ entreated him not to throw 
away all the advantages he had gained by a life of pain- 
ful toil, at the very period when he might hope for otium 
cum dignitate. I left him with regret, and under the im- 
pression that his health and spirits were declining." 

While in Cojjrt upon the Circuits he betrayed a lan- 
guor which showed that he was sick of it, but in society, 
and in traveling from assize town to assize town, he was 
lively and agi'eeable. No one relished a good dinner 
more, although he never was guilty of any excess. He still 
filled the office of Attorney General in the Circuit Court, 
held at Monmouth, which I regularly opened as crier, 
holding the poker instead of a white wand ; and being 
so deeply versed in all legal forms, he brought forth his 
mock charges against the delinquents whom he prose- 
cuted with much solemnity and burlesque effect — so as 
for the moment to induce a belief that notwithstanding 
his habitual gravity, Nature intended him for a wag.' 

' Before tlie public he was always afraid of approaching a jest lest his dig- 
nity might suffer, and in his book on Shipping he would not, without an 
apology, even introduce a translation of a passage from a foreign writer 
whicli might cause a smile : " If mice eat the cargo, and thereby occasion 
no small damage to the merchant, the master must make good the 
loss, because he is guilty of a fault ; yet if he had cats on board he 
shall be excused (Roccus, 58) The rule and exception, although bear- 



i8i6.] LORD TENTERDEN. :S5 

I ought to have mentioned that as early as the year 
1795, he was so confident of increasing employment that 
he ventured to enter the holy state of matrimony, being 
united to Mary, eldest daughter of John Lamotte, Esq., 
a gentleman residing at Basildon. 

There had been a mutual attachment between them 
some years before it was made known to her family, and 
he had received as 2. gage d' amour from her, a lock of her 
hair. This revived his poetical ardor, and in the midst 
of Declarations, Demurrers, and Surrebutters, he drew 
and settled — 

" The answeu uka Lock of Hair to the Inquiries 
OF ITS former Mistress." 

The reader may like to have two or three of the stan- 
zas (or counts) as a precedent : 

" Since first I left my parent stock, 

How strangely alter'd is my state ! 
No longer now a flowing lock, 

With graceful pride elate, 
Upon the floating gale I rise 
To catch some wanton rover's eyes. 

" But close entwin'd in artful braid. 

And round beset with burnish'd gold, 

Against a beating bosom laid, 
An office now I hold : 

New powers assume, new aid impart. 

And form the bulwark of a heart." 

The Lock goes on to describe a great discovery it had 
made while guarding the heart of her lover: 

" For in this heart's most sacred cell. 

By love enthron'd, array'd in grace, 
I saw a fair enchantress dwell 

The sovereign of the place : 
And as she smil'd her power to view, 
I straight my former mistress knew. 

" Then, lady, cease your tender fears : 
Be doubt dismiss'd ! Adieu to care ! 
For sure this heart through endless years 

Allegiance true will bear. 
Since I all outward foes withstand. 
And you the powers within command." 

It is said that while still practicing as a special pleader 
under the bar he at last ventured to mention the pro- 

,»^ somewhat of a ludicrous air, furnish a good illustration of the general 
principle." 



2S6 REIGN OF GEORGE III. [1802— 

posal to the lady's father. The old gentleman asking 
him " for a sight of his rent-roll," not yet being able to 
boast of "a rood of ground in Westminster Hall," he 
exclaimed, " Behold my books and my pupils." 

The marriage took place with her father's consent, 
and proved most auspicious. The married couple lived 
together harmoniously and happily for many years, 
although of very different dispositions. While he was 
remarkably plain and simple in his attire, she was fond 
of finery, and according to the prevailing fashion, she 
habitually heightened her complexion with a thick ve- 
neering of carmine. So little suspicious was he on such 
subjects that I doubt v/hether he did not exultingly say 
to himself, "her color comes and goes." Once while 
paying me a visit in my chambers, in Paper Buildings, 
the walls of which were of old dark oak wainscot, he 
said, " Now, if my wife had these chambers, she would 
mmediately paint them, and I should like them the 
better for it." 

In the collection of his letters intrusted to me I find 
only one addressed to his wife, and this I have great 
pleasure in copying for my readers, as it places him in a 
very amiable point of view. Some years after his mar- 
riage, when he had been blessed with two hopeful 
children, being at Shrewsbury upon the Circuit, he thus 
addressed her: — 

" Shrewsbury, March 27th, 1798. 

" My dearest love, 

" I have just received and read your kind letter, 
which I had been expecting near half an hour. The 
inhabitants of any country but this would be astonished 
to hear that a letter can be received at the distance of 
166 miles on the day after its date, and its arrival calcu- 
lated within a few minutes.' As the invention of paper 
has now ceased to be a theme of rejoicing among poeti- 
cal lovers, I recommend them to adopt the subject of 
mail coaches. They have only to call a turnpike road a 
velvet lawn, and change a scarlet coat into a rosy mantle, 
and they may describe the vehicle and its journey in all 

' The rapidity of communication by the small coach, then lately estab- 
hshed, so much exciting his astonishment, what would he have said had he 
hved to see Railroads and the Electric Telegraph} 



i3i6.] LORD TENTERDEN . 2S7 

the glowing colors of the radiant chariot of the God of 
Day. And that no gentleman or lady may despair of 
success in attempting to handle this new subject, I have 
taken the pains to write a few lines, which a person of 
tolerable ingenuity may work out into a volume : — 

In rosy mantle clad, the God of Day 

O'er heaven's broad turnpike wins his easy way ; 

Yet soon as envious Night puts out his fires, 

The lazy deity to rest retires, 

But sure his robes with brighter crimson glow, 

Who guides the mail-coach through the realms below: 

And greater he who, fearless of the night, 

Drives in the dark as fast as in the light. 

Sweet is the genial warmth from heaven above ; 

But sweeter are the words of absent love. 

Then cease, ye bards, to sing Apollo's praise. 

And let mail-coachmen only fill your lays.' 

"You see my verses are very stiff but recollect that 
husbands deal more in truth than in poetry. In truth 
then I am very happy to hear that you, my dearest 
Mary, and our beloved little John, are so much better, 
and in truth I am very happy to think that the circuit is 
almost over, and that in a few days I shall embrace you 
both. Unless I am detained beyond my expectation, I 
shall certainly have the pleasure of dining with you on 
Monday. Indeed I hope to get to Maidenhead on 
Sunday afternoon, and there step into one of the Bath 
coaches that arrive in town about eleven at night. 1 
have brought a box of Shrewsbury cakes to treat the 
young gentleman when he behaves well after dinner. 
" Adieu, my dearest Mary, 
" Your faithful and affectionate husband, 

" C. Abbott." 

The following verses, which I find in his handwriting, 
were probably inclosed in a letter from him to Mrs. Ab- 
bott, while on the Circuit at Hereford : — 

" In the noise of the bar and the crowds of the hall, 
Tho' destined still longer to move. 
Let my thoughts wander home, and my memory recall 
The dear pleasures of beauty and love. 

" The soft looks of my girl, the sweet voice of my boy, 
Their antics, their hcbbies, their sports ; 
How the houses he builds hfr quick fingers destroy, 
And with kisses his pardon she courts. 



a88 REIGN OF GEORGE III. ;'i8o2— 

" With eyes full of tenderness, pleasure, and pride, 
The fond mother sits watching their play ; 
Or turHS, if I look not, my dullness to chide. 
And invites me like them to be gay. 

" She invites to be gay, and I yield to her voice, 
And my toils and my sorrows forget ; 
In her beauty, her sweetness, her kindness rejoice 
And hallow the day that we met. 

" Full bright were her charms in the bloom of her life 
When I walked down the church by her side ■■ 
And, five years past over, I row find the wife 
More lovely and fair than the bride. 
Hereford, Aug. 6, iSoo." 

His affection for her was warmly returned, and she 
continued very tenderly attached to hina. Shortly be- 
fore his assumption of the ermine, she expressed to m:. 
the deep anxiety she felt from a weakness in his eyes, 
discontent with the tardiness of Eldon in fulfilling the 
promise to make him a Judge, and the pleasure she 
shoiild have in consenting to his retirement from the 
profession altogether, if this would contribute to his 
comfort. They had lived ever since their marriage in a 
small house in Queen Square, Bloomsbury, giving a din- 
ner to a few lawyers now and then,' and seeing no other 
company. He always contributed a dish to his own 
dinner table ; for passing the fishmonger's on his way to 
Westminster, he daily called there and sent home what 
was freshest, nicest, and cheapest — trusting all the rest 
to her. Their union was blessed with four children — two 
sons and two daughters, and the whole household was 
ever remarkable for all that is excellent and amiable. 

On the resignation of Mr. Justice Chambre, it was 
thought that Abbott's well-known desire to be made a 
Judge would have been gratified ; but James Allan Park 
had been conducting very successfully some Government 
prosecutions on the Northern Circuit, to which much im- 
portance was attached, and his claims were pressed upon 
the Chancellor so importunately by Lord Sidmouth,,that 
they could not be resisted. Abbott and his family were 
deeply disappointed, and his health then rapidly de- 
clining, there were serious apprehensions that he would 

' One of the wise saws which I have heard hira recite was, " A good 
dinner, given to guests judiciously selected, is money well spent." 



i8i6.] 



LORD TENTERDEN. 



289 



not be able to attend the fatigue of bar practice any 
longer, and that he must retire upon the decent compe- 
tence which he had acquired. It is said that he himself 
was deliberating between Canterbury and Oxford as his 
retreat, and that he had fixed upon the latter city, where 
he had always passed his time agreeably, whereas the 
recollections of the former were not the unmixed 
" pleasures of memory." 




IV.— 19 



CHAPTER LIII. 



CONTINUATION OF THE LIFE OF LORD TENTERDEN TILl 
HE WAS ELEVATED TO THE PEERAGE. 

OPPORTUNELY another vacancy in the Court of 
Common Pleas soon after arose from the sudden 
death of Mr. Justice Heath, who, considerably 
turned of eighty, made good his -oft-declared resolution 
" to die in harness." ' Abbott was named to succeed 
him, and being obliged to submit to the degree of 
Sergeant-at-Law, he took the same motto which he had 
modestly adopted for his shield when he first indulged 
his fancy in choosing armorial bearings — Labore. 

The following letter was written by him in answer to 
congratulations from his old school-fellow — but it can- 
■ not be trusted as disclosing the whole truth ; for he was 
ever unwilling to breathe any complaint against Lord 
Eldon, even when he thought himself deeply aggrieved 
by the selfishness of his patron :^ — 

" Sergeant's Inn, Feb. 15th, l8i6. 

" My dear Friend, 

" I have felt highly gratified by the receipt of 
your kind letter and the warmth of your congratulations 
on my promotion to the Bench. I can never forget how 
much my present station is owing to your early friend- 
ship. The great object of my desire and ambition is 
now attained : it has been attained at a time when I had 
begun to be solicitous about it, as well on account of my 
advancing age as of a complaint that has for some 
months affected my eyelids and made reading by candle- 
light very inconvenient. The comparative leisure I now 
enjoy has, I think, already been attended with some 
beneficial effect and an abatement of the complaint. If 
the offer had not come now, it might have come too 

' Another peculiarity about him was, that he never would submit to be 
knighted ; being likewise resolved to die, as he did, " John Heath, Esq." 



r8i6.] LORD TENTERDEN. 



291 



late ; if it had come much sooner, pecuniary consider- 
ations would not have allowed me to accept it. But, 
like all other men who have obtained the object of their 
pursuit, I am now beginning to feel the difficulties that 
belong to it — to tremble lest I should be found unequal 
to the discharge of the duties of my station from want 
of learning, or talents, or temper, or lest the res still 
angusta domi should not enable me to keep up the out- 
ward state that so high a rank in society requires, with- 
out injury to my family. These difficulties, small at a 
distance, like all others, now appear large to my view— 
the last of them larger, perhaps, than it ought, though 
the transition from an income exceeding present calls 
and daily flowing in, to one receivable at stated periods 
and of which the sufficiency is not quite certain, is at- 
tended with very unpleasant sensations. The employ- 
ment of the mind, however, so far at least as my very 
short acquaintance with it enables me to judge, is far 
more agreeable. The search after truth is much more 
pleasant than the search after arguments. Some time 
may also be allowed to those studies which are the food 
of youth and the solace of age, but to which a man 
actively engaged in the profession of the law can only 
give an occasional and almost stolen glance. And some 
time may be allowed, too, for the discharge of the duties 
of domestic life, for the calls and the pleasures of friend- 
ship, and for that still more important task, the prepar- 
ation for another world, to which we are all hastening. 
I have been told that some persons, on their promotion 
to the Bench, have found their time hang heavy on theii 
hands ; but I cannot think this will ever be my own case. 
" I have another subject of congratulation, for I am to 
go the Home Circuit, which I shall not have another 
opportunity of doing for many years. C. Willyams has 
promised to be at Maidstone during the assizes. I hope 
he will not be the only old friend I shall meet there.' 

" With best respects to Lady Brydges, 
" I remain, 

" My dear Sir Egerton, 

" Your very faithful and affectionate friend, 

" C. ABBOTTt 

' The vision of his fellow townsmen coming over from Canterbury to see him 
=n the Crown Court, habited in scarlet and ermine, was about to he faihlled. 



792 REIGN OF GEORGE III [1816. 

He sat fcrr a very short time as Judge in the Court of 
Common Pleas ; but not a word which fell from him 
there has been recorded, and had he remained there he 
should probably have known little more of him than the 
dates of his appointment and of his death in " Beatsons 
Political Index." But he was unexpectedly transferred 
to another sphere, where he gained himself a brilliant 
and a lasting reputation. Of this change he gives an 
account in the following letter: — 

" Queen Square, May 5th, 1816. 

" My dear Sir Egerton, 

" You have probably been already informed that I 
have been removed from the Common Pleas to the 
King's Bench. The change was greatly against my per- 
sonal wishes on account of the very great difference in 
the labor of the two situations, which I estimate at not 
less than 400 hours in a year. I had hoped to pass the 
remainder of my life in a situation of comparative ease 
and rest ; but the change was pressed upon me in a way 
that I could not resist, though very unwilling to be flat- 
tered out of a comfortable seat. I hope you will not 
think I have done wrong. 

" I remain, 

" My dear Sir Egerton, 

" Yours most sincerely, 

"C. Abbott." 

In his Diary, begun November 3d, 1822, but taking 
a retrospect of his judicial life, he explains that the true 
reason of his removal was that Lord Eldon wished to 
make a Judge of Burrough, who, from age and other de- 
fects, was not producible in the King's Bench, but might 
pass muster in the Common Pleas. Having stated how 
he at first refused and how Lord EUenborough pressed 
him to agree, he proceeds : " Upon this I went to 
Lord Chief Justice Gibbs, at his house at Hayes, in 
Kent, to consult him. I spoke of the state of my eyes. 
He said, ' If a higher situation were offered to you, 
would you refuse it on that account?' I answered, ' I 
should not think myself justified towards my family in 
doing so, but my own ambition is quite satisfied ' (as in 
truth it was). He replied, ' Then you must not let that 



t8i6.] LORD TENTERDEN. 



293 



excuse prevent your removal.' After some further con- 
ference, in the course of which he expressed himself with 
great kindness in regard to losing my assistance in the 
Common Pleas, it was resolved that I should remove, 
and upon my return from Hayes I communicated to the 
Lord Chancellor that I was willing to remove. This ac- 
count of my removal to the King's Bench may serve as 
an example of the maxim that to do right is the greatest 
wisdom — even the greatest worldly wisdom. It was 
right that I should remove into the King's Bench, and I 
ought to have done so at the first proposal from the 
Lord Chancellor; but I preferred Gibbs, C. J., to Lord 
Ellenborough, as I had a right to do from long acquaint- 
ance and many acts of kindness. I preferred my ease 
to the wish of the Chancellor, for I might have under- 
stood his proposal to contain his wish, though he would 
not tell me so. This I had no right to do, for I owed 
everything to him and his kindness. As soon as I re- 
moved I felt satisfied with myself, though I may truly 
say I did not by any means expect the consequence that 
followed two years -and a half afterwards. But if I had 
not removed into the King's Bench, I think it certain 
that I should not have been placed at the head of that 
Court." 

On Friday, the 3d of May, 1816, Mr. Justice Abbott 
took his seat in the Court of King's Bench along with 
Lord Ellenborough, Mr. Justice Bayley, and Mr. Justice 
Holroyd ' — and he officiated there as a puisne Judge till 
Michaelmas Term, 1818. Never having read at Nisi 
Prius, and having been accustomed to attend to detached 
points as they arose, rather than to take a broad and 
comprehensive view of the merits of the cause, he at first 
occasioned considerable disappointment among those 
who were prepared to admire him ; but he gradually and 
steadily improved, and before the expiration of the 
second year he gave decided proof of the highest judicial 
excellence. The complaints made against him were, 
tiiat in spite of efforts at self-control, his manner to bor- 
ing barristers was sometimes snappish ; that he showed 
too much deference to the Chief Justice; above all, 
that in some political prosecutions, although his de- 

' 6 Taunton, 516 ; 5 Maule and Selwyn, 2. 



294 REIGN OF GEORGE III. [1816. 

meanor was always decorous, and he said nothing that 
could be laid hold of as misdirection or misrepresenta- 
tion, he betrayed an anxiety to obtain a verdict for the 
Crown. Lord EUenborough's health was seriously de- 
clining, and in those days there was still a strong dis- 
position in the Government to repress free discussion 
and to preserve tranquillity by a very vigorous enforce- 
ment of the criminal law — a disposition which soon after 
ceased, when Peel became Home Secretary and Copley 
Attorney General. The malicious insinuated that an 
aspiring puisne was trying for the Collar of SS by " a 
mixture of good and evil arts." He himself was so pro- 
foundly reserved that he might have been acting upon 
this plan without having disclosed it to his own mind. 

I happened to be much in his company during the 
long vacation of 18 16. In consequence of a serious ill- 
ness, then being a desolate bachelor, I had retired to a 
lonely cottage at Bognor, on the coast of Sussex, and 
Mr. Justice Abbott taking up his residence there with 
his family, he was exceedingly kind to me. In our 
walks he talked of literature much more than of law, and 
he would beautifully recite long passages from the Greek 
and Latin classics, as well as from Shakspeare, Milton, 
and Dryden. For all modern English poetry he ex- 
pressed infinite contempt. When L ventured to stand 
up for brilliant passages in Byron, he only exclaimed — 

" Unus et alter 
AssuituT pannus !" 

Yet he was himself still sometimes inspired by the 
Muse. While we remained at Bognor, the Channel was 
visited by a tremendous tempest, which he celebrated 
by the following 

" Sonnet to the Southwest Gale." 

" Perturbed leader of the restless tide, 

That from the broad Atlantic swept away, 
Here mingles with the clouds its lofty spray 
As if it would the narrow limits chide 
That Albion from her neighbor Gaul divide — 
Relentless Southwest ! curb thy angry sway, 
Ere yet the swelling billows' fierce array 
Close o'er yon shattered bark's devoted side ! 
The melancholy si gnal sounds in vain ; 
The crew, desponding, eye the distant shore; 



i8i8.] LORD TENTERDEN. 295 

Calm, ere they perish, calm the troubled main, 

The placid sea and sky serene restore ; 
And be thou welcom'd in the poet's prayer, 
God of the balmy gale and genial air !" 

In the autumn of 1818 there was a great excitement 
in the legal world. Lord EUenborough had had a para- 
lytic seizure, and it was certain that he could never sit 
again. Sir Samuel Shepherd, the Attorney General, 
although an excellent lawyer as well as a very able and 
honorable man, was so deaf that he could not with pro- 
priety accept any judicial office which required him to 
listen to parol evidence, or to viva voce discussion. Sir 
Robert Giffard had been recently promoted to be Soli- 
citor General, from a rather obscure position in the pro- 
fession, and he could not as yet with propriety be placed 
at the head of the common law. Sir Vicary Gibbs was 
looked to, having a great legal reputation, and being in 
the highest favor with the Government; for from Attor- 
ney General, he had successively been made a Puisne 
Judge, Chief Baron of the Exchequer, and Chief Justice 
of the Common Pleas ; but the hand of death was now 
upon him. Who was to be Chief Justice of England? 
Lord EUenborough strongly recommended Mr. Sergeant 
Lens, a most honorable man, an accomplished scholar, 
and a very pretty lawyer— and he was for some time the 
favorite. 

I well remember one morning in the end of October, 
1818, about a fortnight after Lord Ellenborough's death, 
when the puisne Judges of the King's Bench were as- 
sembled at Sergeants' Inn for the hearing of special ar- 
guments in what was called the "Three Cornered Court," 
it was announced that Abbott was certainly to be Chief 
Justice. Nothing discredited the assertion except that 
his own manner was tranquil and listless, and that he was 
observed several times to yawn, seemingly against his 
will. Some alleged that the news might be true, as he 
was only acting a part — and others, who knew him bet- 
ter, explained what they beheld by his habitual want of 
animal spirits, and the collapse after long and painful 
anxiety. 

At the rising of the Court he accepted our congratu- 
lations on his appointment, and on the 4th of Novem- 



296 REIGN OF GEORGE III. [1818— 

ber, fourteen years to a day before his own death, he ac- 
tually appeared in Court at Westminster, wearing the 
Chief Justice's golden chain. 

His family expected to see at the same time his brows 
encircled with a coronet, for ever since Lord Mansfield's 
elevation in 1756, the Chief Justice of the King's Bench 
had been ennobled on his appointment. This distinc- 
tion was withheld from Chief Justice Abbott for nine 
years ; but without such adventitious aid he won the 
highest respect of the public (as Holt had done) by the 
admirable discharge of his judicial duties. 

The following letter from him to Sir Egerton Brydges, 
who had calculated upon a peerage being at once con- 
ferred upon him, fully explains what then took place, 
and his own views upon the subject : — 

" Russell Square, Jan. 17th, 1819. 

" My dear Sir Egerton, 

" I thank you most heartily for your very affection- 
ate letter, and assure you I do not doubt the sincerity 
of your warm and kind expressions. It is well that you 
waited no longer in expectation of seeing my promotion 
to the peerage announced. Such an event is neither 
probable nor desirable. When the Lord Chancellor told 
me he was authorized by the Prince Regent to propose 
the office of Chief Justice to me, he said he was also di- 
rected by his Royal Highness to acquaint me that it was 
not the intention of his Royal Highness to confer a 
peerage upon the person who should take the office, 
whoever he might be. My answer was, that the latter 
part of his sentence relieved me from the only difficulty 
I could have had in answering the first. I was willing to 
take the office, but neither the state of my fortune nor 
that of the office would allow me to take a peerage, ac- 
cording to my views of expediency and justice to my 
family. All the offices in the gift of the Chief Justice, and 
which make his office a means of providing for a family, 
are now held by the families of my predecessors upon 
lives which I can never expect to survive. My emolu- 
ments will fall far short of two-thirds of those which 
Lord Ellenborough enjoyed for many years past. Under 
such circumstances, I should be most unwilling to accept 
an hereditary honor, and I think myself fortunate in 



1 827 J LORD TENTERDEN. 297 

having a family, of which no one member is desirous of 
such a distinction. I have written so much about my- 
self and my own situation, because I know that you wish 
to hear of them. It is a subject of deep regret to me 
that I receive your congratulations on my promotion 
from a distant country 

" Wherever you are and whatever you do, may health 
and comfort attend you ! " 

The far happiest part of my life as an advocate I passed 
under the auspices of Chief Justice Abbott. From being 
a puisne, it was some time before he acquired the as- 
cendency and the prestige which, for the due adminis- 
tration of justice, the Chief ought to enjoy — and while 
Best remained a member of the Court, he frequently 
obstructed the march of business. But when this very 
amiable and eloquent, although not very logical, Judge 
had prevailed upon the Prince Regent to make him Chief 
Justice of the Common Pleas, the King's Bench became 
the beau iddal of a court of justice. Best was succeeded 
by Littledale, one of the most acute, learned, and simple- 
minded of men. For the senior puisne we had Bayley. 
He did not talk very wisely on literature or on the affairs 
of life, but the whole of the common law of this realm he 
carried in his head and in seven little red books. These 
accompanied him day and night; in these every reported 
case Was regularly posted, and in there, by a sort of 
magic, he could at all times instantaneously turn up the 
authorities required. The remaining puisne was Holioyd, 
who was absolutely born with a genius for law, and was 
not only acquainted with all that had ever been said or 
written on the subject, but reasoned most scientifically 
and beautifully upon every point of law which he touched, 
and, n^ptwithstanding his husky voice and sodden fea- 
tures, as often as he spoke he delighted all who were 
capable of appreciating his rare excellence. Before such 
men there was no pretense for being lengthy or im- 
portunate. Every point made by counsel was understood 
in a moment, the application of every authority was dis- 
covered at a glance, the counsel saw when he might sit 
down, his case being safe, and when he might sit down, 
all change of success for his client being at an end. I 
have practiced at the bar when no case was secure, no 



jgS REIGN OF GEORGE III. [1818— 

case was desperate, and when, good points being over- 
ruled, for the sake of justice it was necessary that bad 
points should be taken ; but during that golden age law 
and reason prevailed — the result was confidently antici- 
pated by the knowing before the argument began — and 
the judgment was approved by all who heard it pro- 
nounced — including the vanquished party. Before such 
a tribunal the advocate becomes dearer to himself by 
preserving his own esteem, and feels himself to be a 
minister of justice, instead of a declaimer, a trickster, or 
a bully. I do not believe that so much important business 
was ever done so rapidly and so well before any other 
Court that ever sat in any age or country. 

Although the puisnes deserve all the praises that I 
have bestowed upon them, yet the principal merit is, no 
doubt, due to Abbott, and no one of them could have 
played his part so well. He had more knowledge of 
mankind than any of them, and he was more skillful as a 
moderator in forensic disputation. He was not only ever 
anxious, for his own credit, that the business of the 
Court should be despatched, but he had a genuine love of 
law and of justice, which made him constantly solicitous 
that every case should be decided properly. His pasty 
face became irradiated and his dim eye sparkled if a new 
and important question of law was raised ; and he took 
more interest in its decision than the counsel whose 
fame depended upon the result. Though a most faithful 
trustee of the public time, insomuch that he thought any 
waste of it was a crime and a sin, he showed no marks of 
impatience, however long an examination or a speech 
might be, if he really believed that it assisted in the 
investigation of truth, and might properly influence the 
jury in coming to a right verdict. 

The language in which he clothed his statements and 
decisions was always correct, succinct, idiomatic, and ap- 
propriate, and he would not patiently endure conceit or 
affectation in the language of others. He was particularly 
irate if a common shop was called a warehouse by its 
owner, or the shopman dubbed himself an assistant. A 
gentleman pressing into a crowded court, complained 
that he could not get to his counsel. Lord Tenterden : 
"What are you, Sir?" Gentleman: "My Lord, I am 



1827.] LORD TENTERDEN. 



299 



the plaintiff's solicitor." Lord Tenterden : "We know 
nothing of solicitors here, Sir. Had you been in the 
respectable rank of an attorney, I should have ordered 
room to be made for you." ' A country apothecary, in 
answer to some plain question, using very unnecessarily 
high-sounding medical phraseology, the Chief Justice 
roared out, " Speak English, Sir, if you can, or I must 
swear an interpreter." 

There were heavy complaints against him at nisiprius, . 
thatwhen a fact had been proved by one witness, he j 
reprimanded the counsel for calling another to prove it? 
over again — that he was angry when a witness was cross- 
examined as to the facts sworn by him when examined 
in chief^and that he appealed to the evidence he had 
written down in his note-book as if it were a special 
verdict upon which the cause was to be decided — for- 
getting that everything might depend upon the im- 
pression made by the evidence upon the minds of the 
jury and the credit they might give to the witnesses. 
There is no denying that occasionally he was rather 
irritable and peevish, and showed in his manner a want 
of good taste and of good breeding. When a third or 
fourth counsel rose to address him, following able leaders, 
he would sneeringly exclaim, " I suppose we are now to 
hear what is to be said on the other side" although it 
might be the maiden effort of a trembling junior ; and he 
too often forgot the remark of Curran, when reproached 
for too much forbearance on becoming Master of the 
Rolls, " I do not like to appear in the character of a 
drill-sergeant, with my cane rapping the knuckles of a 
private, when I am raised from the ranks to be a 
colonel." 

Although he behaved very courteously to the other 
puisnes, he could not always conceal dislike to brother 
Best. That learned Judge, in trying a defendant for a 
blasphemous libel, had thrice fined him for very im- 
proper language in addressing the jury — £2.0 for saying 
to the Judge when reproved, " My Lord, if you have 

' When in 1850 I returned to Westminster Hall, after a long absence of 
nine years, I found that the A ^iorneys h.a.d almost all gown into Solicitors ; 
and the more expedient course now would probably be entirely to abolish 
the word attorney, although it denotes the representative character of the 
forensic ageat much more appropriately than the favorite word Solicitor. 



500 REIGN OF GEORGE III. [i8iS— 

your dungeon ready, I will give you the key " — ^40 for 
saying that " the Scriptures were ancient tracts containing 
sentiments, stories, and representations totally derogatory 
to the honor of God, destructive to pure principles of 
morality, and opposed to the best interests of society ' 
— and the like sum of £dp for saying very irreverently, 
but one would have thought less culpably, " The Bishops 
are generally sceptics." Amotion being made for a new 
trial on the ground that the defendant had been im- 
properly interrupted in making his defense, Abbott, 
C. J., recognized the power of fining for a contempt, and 
intimated an opinion that the exercise of it on this 
occasion had not really debarred the defendant from 
using any arguments which could have availed him, but 
sneered at the tariff of pecuniary mulcts, and pretty 
plainly intimated that he himself should have pursued 
a different course.' 

The only grave fault which could be justly imputed 
to Chief Justice Abbott was, that he allowed himself to 
fall under the .dominion of a favorite. A judge is in 
danger of having such a charge brought against him 
from one counsel in his court being much more employed 
than any other, and being almost always retained by 
plaintiffs, who in a large proportion of causes succeed. 
This may prove a palliation for Abbott, but by no means 
an entire exculpation. Sir James Scarlett had been his 
senior at the bar, when they were in the same cause on 
the same side, had often snubbed him, without permitting 
him to examine an important witness, and hardly even 
to open his mouth upon a point of law. The timid 
junior, become Chief Justice, still looked up to his old 
leader with dre!kd, was afraid of offending him, and was 
always delighted when he could decide in his favor. The 
most serious evil arising from this ascendency was when 
Scarlett conducted criminal prosecutions before Abbott, 
and, above all, prosecutions for conspiracy. In a long 
sequence of these in which there had been convictions, 
the Court granted new trials, on the ground that the 
verdict was not supported by the evidence. 

' Rex V. Davison, 4 B. and A. 33. It should be noted that Best, who, 
though a passionate, was an exceedingly good-natured man, had himself 
remitted the fines before the Court rose. 



1827.J LORD TENTERDEN. 301 

" This acute and dexterous lawyer," it has been said, 
" used to confirm his influence by well-timed delicate 
flattery. Having moved for a new trial for misdirection, 
he prefaced his motion with the explanatory remark that 
he had taken an accurate note of the summing up, which 
he only did when he conceived there was a miscon- 
ception on the part of the Judge — which did not happen 
with regard to his Lordship three times a year. The 
Chief Justice was evidently gratified, and observed with 
a smile, ' I fear, Mr. Scarlett, that you do not take notes 
as often as you ought to do.' " ' 

The bar evinced a jealous sense of the ascendency of 
the favorite. On one occasion when, with the seeming 
approbation of the Chief Justice, Scarlett had said, in an 
altercation with Mr. Adolphus, who practiced chiefly in 
the Criminal Courts, " There is a difference between the 
practice here and at the Old Bailey ; " his antagonist 
retorted, to the delight of his brethren, " I know there 
is. The Judge there rules the advocate ; here, the 
advocate rules the Judge." 

The following letter from the Chief Justice to Sir 
Egerton Brydges, after some remarks upon Lord Eldon, 
Lord Giffard (then Attorney General), and Lord Lynd- 
hurst (then Solicitor General), enters with extraordinary 
freedom into his own judicial character : — 

" The Chancellor, who has done more work than any 
living lawyer, perhaps than any deceased, is, I verily be- 
lieve, and has for some time been, desirous of resigning, 
but kept in his place from the difficulty of filling it up, 
and from the King's personal desire. The present At- 
torney General will probably be his successor : he is a 
good lawyer and a sound-headed man ; warm rather 
than vigorous, and without dignity of person or manner. 
Yet I think he is the fittest man living to succeed one 
for whom a successor must soon be found — though per 
haps an equal never will be. The Solicitor General is 
probably very little known to you, though I think you 
have sat with him in the House of Commons. He has 
less learning than the Attorney General, but a much 
better person, countenance, and manner; a good head 
and a kind heart, and not deficient in learning. I 
' Townsend's Lives, ii. 263. 



302 



REIGN OF GEORGE III. [1818— 



suppose he will soon fill one of our high offices in the 
law. 

" Of myself I have really scarce any thing to say. My 
health is good, and my spirits are generally good. I go 
through my work as I can, though certainly not without 
some anxieties and some crosses. I scarcely know 
whether the extreme caution that the prevailing spirit 
of cavil and misrepresentation imposes on a Judge be 
fortunate or unfortunate for his future reputation — it 
is certainly unfortunate for his comfort : a bridle in the 
mouth with a sharp curb is not a very pleasant attire, 
yet in these times at least it is very necessary. I gener- 
ally study to say as little as possible from the Bench, 
and to confine myself closely to the very point before 
me, not hazarding allusions or illustrations in which I 
know much wiser men have often failed. How far I 
succeed others may better judge. I am sure many of 
my decisions, when I read them in the Reports, are at 
least as dry and jejune as may well be tolerated. Lord 
Mansfield indulged himself in allusions and illustrations: 
his opinions are said to have produced a great effect on 
the majority of those who heard him ; they are not well 
reported by Burrow — at least, few of them read well to a 
lawyer. His taste for illustration was not fortunate. His 
opinion is often right when his illustrations are not 
right. Dr. Jackson (Dean of Christ Church) knew him 
well and privately, and often talked with me about him. 
We agreed upon his talents and character. They were 
plausible and showy, and not unsuited to the age. He 
certainly did much for the mercantile law, and not a 
little for the law in general, by breaking down the bar- 
rier of what are usually called forms ; but in this he 
sometimes went too far. The preservation of forms, 
however unpopular, is of the essence of all establish- 
ments — of the judicial in particular — for if Judges disre- 
gard them, they become authors and not expounders of 
law. The great art of a lawyer is to understand them. 
If a Judge does not understand them, he will violate the 
law in a few instances by breaking them ; and if of a 
cautious temper, do injustice in many by a mistaken ad- 
herence to their supposed offect : the latter has been the 
most common error. The less a Judge knows of special 



1827. J LORD TENTERDEN. 303 

pleading, the more nonsuits take place under his direc- 
tion. Buller told me so many years ago, and experience 
has shown the truth of his assertion. You must forgive 
all this from an old Special Pleader." 

I have anxiously looked through this Chief Justice's 
judgments with a view to select some which might in- 
terest the general reader, but have met with sad disap- 
pointment. They are all excellent for the occasion, but 
I find none that are very striking. It. so happened, that 
while he presided in the Court of King's Bench there 
were hardly any State trials, and no great constitutional 
question arose, such as " general warrants," or " the right 
of juries to consider the question of libel or no libel," 
or " whether a court of law is to limit the privileges of 
the two Houses of Parliament." With admirable tact 
and discretion he avoided any attempt to extend the 
jurisdiction of his own Court ; and he never once got 
into collision with any other Court or any other au- 
thority in the State. He was cautious likewise in re- 
straining the prerogative writs to their proper purposes. 

A motion being made before him for a prohibition to 
the Lord Chancellor sitting in bankruptcy ; after show- 
ing that upon the facts disclosed, the Lord Chancellor 
had done nothing amiss, he added, •' We wish not to be 
understood as giving any sanction to the supposed au- 
thority of this Court to direct such a prohibition. It 
will be time enough to decide the question when it 
arises — if ever it shall arise, which is not very probable, 
as no such question has arisen since the institution of 
proceedings in bankruptcy — a period little short of 
three hundred years. If ever the question shall arise, 
the Court, whose assistance may be invoked to correct 
an excess of jurisdiction in another, will without doubt 
take care not to exceed its own.'" 

I know not that I can offer a fairer specimen of his 
judgments than that given by him in Bluhdell v. Cat- 
terall, where the question arose, whether there be a com- 
mon law right for all the King's subjects to bathe in the 
sea ; and, as incident thereto, of everywhere crossing the 
sea-shore on foot or in bathing-machines for that pur- 
pose. Best, J., strenuously supported the right, and thus 
' Ex parte Cowan, 3 B. and A. 123. 



3°4 



REIGN OF GEORGE III. [1818- 



was he answered : Abbott, C. J. : " I have considered 
this case with very great attention, from the respect I 
entertain for the opinion of my brother Best, though I 
had no doubt upon the question when it was first pre- 
sented to me ; nor did the defendant's counsel raise any 
doubt in my mind by his learned and ingenious argu- 
ment. This is an action of trespass brought against the 
defendant for passing with carriages from some place 
above highwater-mark across that part of the shore 
which lies between the high and lowwater-mark, for the 
conveyance of persons to and from the water for the 
purpose of bathing. The plaintiff is the undoubted 
owner of the soil of this part of the shore, and has the 
exclusive right of fishing thereon with stake-nets. The 
defendant does not rely on any special custom or pre- 
scription for his justification, but insists on a common 
law right for all the King's subjects to bathe on the sea- 
shore, and to pass and repass over it for that purpose on 
foot, and with horses and carriages. Now, if such a com- 
mon" law right existed, there would probably be some 
mention of it in our books ; but none is found in any 
book, ancient or modern. If the right exist now, it 
must have existed at all times ; but we know that sea- 
bathing was, until a time comparatively modern, a mat- 
ter of no frequent occurrence, and that the carriages, by 
which the practice has been facilitated and extended, are 
of very modern invention. 

" There being no authority in favor of the affirmative 
of the question in the terms in which it is proposed, it 
has been placed in argument at the bar on a broader 
ground ; and as the waters of the sea are open to the 
use of all persons for all lawful purposes, it has been 
contended, as a general proposition, that there must be 
an equally universal right of access to them for all such 
purposes over land, such as the plaintiff's, on which the 
alleged trespasses have been committed. If this could 
be established, the defendant must undoubtedly prevail, 
because bathing in the waters of the sea is, generally 
speaking, a lawful purpose. But in my opiniun there is 
no sufficient ground, either in authority or in reason, to 
support this general proposition, Bracton, in the pas- 
sage referred to, speaks not of the waters of the sea gen- 



1827.J LORD TENTERDEN. 



305 



erally, but of ports and navigable rivers ; and as to ports, 
Lord Hale distinguishes between the interest of prop- 
erty and the interest of franchise ; and says, that if A. 
hath the ripa or bank of the port, the King cannot 
grant liberty to unlade on the bank or ripa without his 
consent, unless custom hath made the liberty thereof 
free to all, as in many places it is. Now, such consent, 
as applied to the natural state of the ripa or bank, would 
be wholly unnecessary if any man had a right to land 
his goods on every part of the shore at his pleasure. If 
there be no general right to unlade merchandise on the 
shore, there can be no right to traverse the shore with 
carriages or otherwise for the purpose of unlading ; and 
consequently, the general proposition to which I have 
alluded cannot be maintained as a legitimate conclusion 
from the general right to navigate the water. One of 
the topics urged at the bar in favor of this supposed 
right was that of public convenience. Public conve- 
nience, however, is in all cases to be viewed with a due 
regard to private property, the protection whereof is one 
of the distinguishing characteristics of the law of Eng- 
land. It is true, that property of the description of the 
present is in general of little value to its owner ; but I 
do not know how that little is to be respected, and still 
less how it is ever to be increased, if such a general right 
be established. How are stake-nets to be lawfully fixed 
on the beach? By what law can any wharf or quay be 
made ? These, in order to be useful, must be below the 
high-water mark. In some parts of the coast where the 
ground is nearly level the tide ebbs to a great distance, 
and leaves dry very considerable tracts of land. In such 
situations thousands of acres have, at different times, 
been gained from the sea by embankments, and been 
converted to pasture or tillage. But how could such im- 
provements have been made, or how can they be made 
hereafter, without the destruction or infringement of this 
supposed right ? And it is to be observed that wharfs, 
quays, and embankments, and in-takes from the sea, are 
matters of public as well as private benefit. I am not 
aware of any usage in this matter sufficiently extensive 
or uniform to be the foundation of a judicial decision. 
In many places, doubtless, nothing is paid to the owner 



3o6 REIGN OF GEORGE III. [1818— 

of the shore for leave to traverse it. In many places 
the King retains his ownership, and it is not probable 
that he should offer any obstruction to those who, for 
recreation, wish to walk, or ride, or drive along the sands 
left by the receding tide. Of private owners, some may 
not have thought it worth while to advance any claim 
or opposition; others may have had too much discretion 
to put their title to the soil to the hazard of a trial by 
an unpopular claim to a matter of little value ; others, 
and probably the greater number, may have derived 
or expected so much benefit from the increased value 
given to their inclosed land by the erection of 
houses and the resort of company, that their own 
interest may have induced them to acquiesce in, and 
even to encourage the practice as a matter indirectly 
profitable to themselves. Many of those who reside in 
the vicinity of inland wastes and commons walk and ride 
on horseback in all directions over them for health and 
amusement, and sometimes, even in carriages, deviate 
from the public paths into those parts which may be so 
traversed with safety. In the neighborhood of some 
frequented watering-places this practice prevails to a 
very great degree ; yet no one ever thought that any 
right existed in favor of this enjoyment, or that aay 
justification could be pleaded to an action at the suit of 
the owner of the soil. The defendant finally says, that 
the right may be considered as confined to those lo- 
calities where it can be exercised without actual prejudice 
to the owner of the shore, and subject to all modes of 
present use or future improvement on his part. No 
instance of any public right so limited and qualified is to 
be found. Every public right to be exercised over the 
land of an individual is pro tanto a diminution of his 
private rights and enjoyments, both present and future, 
so far as they may at any time interfere with or obstruct 
the public right. But shall the owner of the soil be 
allowed to bring an action against any person who may 
drive a carriage or walk along any part of the sea-shore, 
although not the minutest injury is done to the owner? 
The law has provided suitable checks to frivolous and 
vexatious suits, and experience shows that the owners 
of the shore do not trouble themsel\>es or others about 



x827.J LORD TENTERDEN. 307 

such trifles. But where one man endeavors to make his 
own special profit by conveying persons over the soil of 
another, and claims a public right to do so, as in the 
present case, it does seem to me that he has not any 
just reason to complain, if the owner of the soil shall 
insist on participating in the profit, and endeavor to 
preserve the evidence of the private right which has 
belonged to him and his ancestors. For these reasons I 
am of opinion that there is not any such common-law 
right as the defendant has claimed ; and my brothers 
Bayley and Holroyd agreeing with me, there must be 
judgment for the Plaintiff." ' 

In the following judgment Chief Justice Abbott held 
that the author or publisher of an immoral book cannot 
maintain an action for pirating it. " This was an action 
brought for the purpose of recovering a compensation in 
damages for the loss alleged to have been sustained from 
the publication of a copy of a book which had been first 
published bj- the plaintiff. At the trial it appeared that 
the work professed to be a history of the amours of a 
courtezan, that it contained in some parts matter highly 
indecent, and in others matter of a slanderous nature 
upon persons whose supposed adventures it narrated. 
The question, then, is whether the first publisher can 
claim a compensation in damages for a loss sustained by 
an injury done to the sale of such a work. In order to 
establish such a claim he must in the first place show a 
right to sell, for if he has not that right, he cannot sus- 
tain any loss which the law will recognize by an injury to 
the sale. Now, I am certain no lawyer can say that the 
sale of each copy of this work is not an offense against 
the law. How, then, can we hold that by the first 
publication of such a work a right of action can be given 
against any person who afterwards publishes it ? It is 
said that there is no decision of a court of law against 
the plaintiff's claim. But upon the plainest principles of 
the common law, founded as it is, where there are no 
authorities, upon common sense and justice, this action 
cannot be maintained. It would be a disgrace to the 
common law if a doubt could be entertained upon the 
subject ; but I think no doubt can be entertained, and 

' Blundell v. Catterall, 5 Bam and Aid. 268-316. 



3o8 REIGN OF GEORGE III. [1818— 

I want no authority for pronouncing such a judicial 
opinion." ' 

Thus he pointedly defended our peculiar doctrine of 
high treason, which constitutes the offense in the intention, 
but requires this intention to be manifested by an act. 
" The law has wisely provided (because the public safety 
requires it) that in cases of this kind which manifestly 
lead to the most extensive public evil, the intention shall 
constitute the crime ; but the law has at the same time 
with equal wisdom provided (because the safety of in- 
dividuals requires it) that the intention shall be mani- 
fested by some act tending towards the accomplishment 
of the criminal object."" 

Although he saw more distinctly the evils than the 
benefits arising from the freedom of the press, he laid 
down the law of libel always with calmness and decorum. 
Soon after the ascension of George IV. a criminal in- 
formation was filed by the Attorney General (not very 
discreetly) against the proprietor and printer of a news- 
paper for the following paragraph : " Attached as we 
sincerely and lawfully are to every interest connected 
with the Sovereign or any of his illustrious relatives, it 
is with the deepest concern we have to state that the 
malady under which his Majesty labors is of an alarm- 
ing description, and may be considered hereditary. It 
is from authority we, speak." At the trial before Ab- 
bott, C. J., at Guildhall, the counsel for the defendants 
admitted that the paragraph complained of imported that 
the King labored under insanity, and that this assertion 
was untrue, but insisted that the defendants believed 
the fact to be as they stated it, and that they were not 
criminally answerable, as there had previously been 
strong public rumors to the same effect. 

Abbott, C. J. : " To assert falsely of his Majesty or of 

' Stockdale v. Onwhyn, 5 Barn, and Cr. 175. This principle is perfectly 
sound, but there must be great difficulty in acting upon it. Judges and 
juries may be much divided as to whether the authors of such novels as 
" Tom Jones and '" Peregrine Pickle " ought to be allovired to maintain an 
action for pirating their works. Lord Eldon refused an injnnction against 
the piracy of a poem dedicated by Lord Byron to Walter Scott, on the 
ground of its being atheistical, although it is generally considered to be no 
more liable to that charge than " Paradise Lost." 

" State Tr. vol. xxxiv. — Thistlewood's Case. 



1 82 7. J LORD TENTERDEN. 



309 



any other person that he labors under the infliction of 
mental derangement is a criminal act. It is an offense 
of a more aggravated nature to make an assertion con- 
cerning his Majesty than concerning a subject, by reason 
of the greater mischief which may thence arise. It is 
distinctly admitted by the counsel for the defendants 
that the statement in the libel was false in fact, although 
they allege that rumors to the same effect had been pre- 
viously circulated in other newspapers. Here the writer 
of this article does not seem to found himself upon ex- 
isting rumors, but purports to speak from authority ; 
and inasmuch as it is now admitted that the fact did 
not exist, there could be no authority for the statement. 
In my opinion the publication is a libel calculated to 
vilify and scandalize his Majesty, and to bring him into 
contempt among his subjects. But you have a right to 
exercise your own judgment upon the publication, and 
I invite you to do so." 

After the jury had retired about two hours, they re- 
turned into Court, and said they wished to have the 
opinion of the Lord Chief Justice " whether it was or 
was not necessary that there should be a malicious in- 
tention to constitute a libel?" 

Abbott, C. J.: "The man who publishes slanderous 
matter in its nature calculated to defame and vilify 
another, must be presumed to have intended to do that 
which the publication is calculated to bring about, un- 
less he can show the contrary, and it is for him to show 
the contrary. 

The jury having retired for three hours, returned a 
verdict of Guilty, but recommended the defendants to 
mercy. Brougham and Denman moved for a new trial 
on account of the Judge's direction, and more particu- 
krly for his having told the jury that they (the counsel) 
had admitted the statement in the libel to be false in 
iact, using that word to denote a criminal untruth ; 
whe'ieas they had only admitted the statement to be un- 
true, the defendants believing it to be true, and an untrue 
statement may be made with perfect innocence and good 
faith Bayley and Holroyd having said that the direc- 
tion was unexceptionable. Best added, " Whether a pub- 
lication be t ue or false is not the subject of mquiry m 



3IO REIGN OF GEORGE III. [1818— 

the trial of an information for a libel, but whether it be 
a mischievous or innocent paper. We are not called 
upon to decide whether the defendants would have been 
justified had the statement been true. But it must not 
be taken for granted that if such a dreadful affliction 
had happened to the country as the insanity of the King, 
the editor of a newspaper would be justified in publish- 
ing an account of it any time and in any manner that 
he thought proper. It is fit that the time and mode 
of such a communication should be determined on by 
those who are best able to provide against the effects of 
the agitation of public feeling which it is likely to pro- 
duce. Such a communication rashly made, although 
true, might raise an inference of mischievous intention, 
for truth may be published maliciously." 

Abbott, C. J. : " My learned brothers having delivered 
their opinion that nothing which fell from me in my ad- 
dress to the jury furnishes sufficient ground for granting 
a new trial, I will merely add that unless malicious in- 
tent may be inferred from the publication of the slander 
itself in a case where no evidence is given to rebut that 
inference, the reputation of all his Majesty's subjects, 
high and low, would be left without that protection 
which the law ought to extend to them. I will say fur- 
ther, with regard to the particular expression contained 
in this publication, that if any writer thinks proper to 
say that ke speaks from authority when he informs his 
readers of a particular fact, and it shall turn out that 
the fact so asserted is untrue, I am of opinion that he 
who makes the assertion in such a form may be justly 
said to make a false assertion. I am not a sufficient 
casuist to say that to call it an untrue assertion would 
be a more proper form of expression.'" 

After the transfer of Best to preside in the Common 
Pleas there was hardly ever a difference of opinion among 
the Judges of the King's Bench, but strange to say, on 
one question which seems very plain and' easy, they 
were divided equally, although all actuated by singleness 
of purpose to decide rightly. A gentleman residing in 
London hired of a public stable-keeper a pair of horses 
to draw his carriage for a day, and the owner of the 

' Rex V. Hai-vey and another, 2 Barn, and Cr. 257. 



1827.] LORD TENTERDEN. 311 

horses provided the driver. Through the negligence of 
the coachman in driving, the carriage struck a horse be- 
longing to a stranger. The question was whether the 
owner of the carriage was liable to be sued for this in- 
jury? The Chief Justice, before whom the cause was 
tried, thought that he was not, and directed a nonsuit. 
On application to the Court to set aside the nonsuit, 
Bayley and Holroyd held that the driver was pro hac 
vice the servant of the owner of the carriage, although 
let for the day, with the horses, by the owner of the 
horses. 

Abbott, C. y.: "I must own that I cannot perceive 
any substantial difference between hiring a pair of horses 
to draw my carriage about London for a day, and hiring 
them to draw it for a stage on a road I am traveling, the 
driver being in both cases furnished by the owner of the 
horses in the usual way, although in the one instance he 
is called a coachman and in the other a post-boy. Nor 
can I feel any substantial difference between hiring the 
horses to draw my own carriage on these occasions and 
hiring a carriage with them of their owner. If the tem- 
porary use and benefit of the horses will make the hirer 
answerable, and there being no reasonable distinction 
between hiring them with or without a carriage, must 
not the person who hires a hackney-coach to take him 
for a mile or other greater or less distance, or for an 
hour or longer time, be answerable for the conduct of 
the coachman ? Must not the person who hires a wherry 
on the Thames be answerable for the conduct of the 
waterman ? I believe the common sense of all men 
would be shocked if any one should affirm the hirer to 
be answerable in either of these cases." 

Littledale, J., concurred in this opinion, and the non- 
suit stood.' 

Chief Justice Abbott in his addresses from the Bench 
never aimed at eloquence or epigram, but he showed 

' Laugher v. Pointer, 5 B. and C. 547. By Ihe Common Law Procedure 
Act, where the Judges are divided, the case now goes by appeal to a 
Court of Error. Lord Abinger, Chief Baron, afterwards ruled that the 
liability under such circumstances is not a question of law, and that it is 
for the jury to say whether the driver, when the accident happened, was 
the servant of the person who has taken the horses to hire, or has let 
them to hire. Brady v. Giles, I Moody and Robinson, 494. 



312 REIGN OF GEORGE III. [1818— 

himself master of a nervous style which rose in dignity 
with the occasion. In opening the commission for the 
trial of the Cato Street conspirators, a set of low, des- 
perate men who had laid a plot to assassinate all the 
Cabinet Ministers, and then to seize upon the govern- 
ment, he thus cautioned the Grand Jury against incre- 
dulity on account of the improbability of the statements 
which might be made by the witnesses : — 

" Such ulterior designs, if they shall appear to be of 
the nature to which I have alluded, and to relate to the 
usurpation of the government in opposition to the con- 
stituted authorities of the realm even for .a season, will 
appear to the calm eye of sober reason to be wild and 
hopeless. But you, gentlemen, know that rash and evil- 
minded men, brooding over their bad designs, gradually 
lose sight of the difficulties that attend the accomplish- 
ment of their schemes, and magnify the advantage to be 
derived from them. And as it is the natural propensity 
of the vicious to think others no less vicious than them- 
selves, those who form wicked plans of a public nature 
easily believe that they shall have numerous supporters, 
if they can manifest at once their designs and their 
power by striking some one important blow." 

To prepare the minds of the Grand Jury for the evi- 
dence of spies and accomplices, he added — " This belief 
leads in some instances to a rash and hasty communica- 
■ tion of the wicked purpose to others who are thought 
likely to adopt it and join in its execution, but who, in 
fact, are not prepared to do so, and thereby occasionally 
furnishes the means of detection. Dark and deep de- 
signs are seldom fully developed except to those who 
consent to become participators in them, and can there- 
fore be seldom exposed and brought to light by the tes- 
timony of untainted witnesses. Such testimony is to be 
received on all occasions with great caution ; it is to be 
carefully watched, deliberately weighed, and anxiously 
considered. He who acknowledges himself to have be- 
come a party to a guilty purpose does by that very ac- 
knowledgment depreciate his own personal character 
and credit. If, however, it should ever be laid down as 
a practical rule in the administration of justice that the 
testimony of accomplices should be rejected as incred- 



1827.] LORD TENTERDEN. 313 

ible, the most mischievous consequences must neces- 
sarily ensue ; because it must not only happen that many 
heinous crimes must pass unpunished, but great encour- 
agement will be given to bad men by withdrawing from 
their minds the fear of detection and punishment 
through the instrumentality of their partners in guilt, 
and thereby universal confidence will be substituted for 
that distrust of each other which naturally possesses men 
engaged in wicked projects, and which often operates as 
a restraint against the perpetration of offenses to which 
the co-operation of a multitude is required. 

In passing sentence of death upon the prisoners, he 
thus moralized upon the same theme : — 

" It has happened to you on the present occasion, as 
to many others before you, that the principal instru- 
ments by which you were brought to justice are persons 
who have partaken in your own guilty design. I trust 
that this circumstance will have its due weight in the 
consideration of all who shall become acquainted with 
your fate, and that they will ever for the sake of their 
own personal safety, if they cannot be influenced by any 
higher consideration, be induced to abstain from those 
evil combinations which have brought you into the mel- 
ancholy situation in which you now stand. That Eng- 
lishmen, laying aside the national character, should as- 
semble to destroy in cold blood the lives of fifteen per- 
sons unknown to them, except from their having filled 
the highest offices in the state, is without example in the 
history of this country, and I hope will remain un- 
paralleled for atrocity in all future times." 

Our Chief Justice, however, tarnished the fame which 
he might have carried off without a shade from his dig- 
nified, impartial, and firm demeanor during these trials, 
by imprudently making an order that there should be 
no publication of any part of the proceedings till they 
were all concluded, and by fining the proprietor of a 
newspaper ;^500 for publishing an account of the first 
trial before the second had begun. The Courts upheld 
the power to make the order and to enforce it by fine, 
but such a mode of proceeding has never since been at- 
tempted, the sound opinion being that the delay of 
publication is not desirable, even if it could practically 



314 REIGN OF GEORGE III. [1818— 

be insured, and that the newspapers may be considered 
as indefinitely enlarging the dimensions of the Court so 
as to enable the whole nation to see and hear all that 
passes — between the arraignment of the prisoner and his 
condemnation or acquittal. 

I ought to record for the credit of this Chief Justice 
and for the imitation of his successors, that while he 
maintained forms necessary to guard against fraud and 
to protect innocence, he had not the passion for technical 
objections by which justice is sometimes defeated. An 
indictment charged that " Mary Somerton, on a day and 
at a place named, being then and there a servant to one 
Joseph Hellier, on the same day there stole his goods." 
The prisoner being convicted and sentenced to transpor- 
tation for fourteen years, the record was removed by 
writ of error, and error assigned that it did not suffi- 
ciently appear from the indictment that she was servant 
to the owner of the goods at the time when the larceny 
was committed, although she might have been so at 
some moment of the same day. 

Lord Tenterden, C. J. : " If we were to hold that the 
allegation ' that on such a day the prisoner being the 
servant of Joseph Hellier did on the same day steal his 
goods,' does not import that she stole the goods at the 
same time when she was his servant, we should expose 
ourselves to the reproof expressed by a very learned and 
very humane judge, that it is disgraceful to the law when 
criminals are allowed to escape by nice and captious 
objections of form." ' 

Although generally so sound in his decisions, he did 
not reach the reputation of infallibility. He shocked the 
conveyancers exceedingly by holding that a jury might 
presume the surrender of a term assigned to attend the 
inheritance where it had not been dealt with for a num- 
ber of years in subsequent conveyances,'' and he got into 
some discredit by broadly laying down that a mortgagor 
allowed to remain in possession of the mortgaged 
premises is tenant to the mortgagee.' I must be per- 
mitted likewise to doubt the soundness of his decision 
that a native of Scotland born out of wedlock, but 

' Rex V. Somerton, 7 B. and C. 465. » Doe v. Hilder, 3 B. and A. 784. 
' Partridge v. Beer, 5 B. and A. 604. 



iS27-] LORD TENTERDEN. 



3'S 



rendered legitimate according to the law of that country 
by the subsequent marriage of his parents, is not in- 
heritable to freehold property in England. It was con- 
firmed by the House of Lords, but I cannot help think- 
ing that it proceeded on a narrow-minded and erroneous 
principle. The admission was freely made that the 
claimant, having the status of legitimacy in the country 
of his birth, was to be considered legitimate in England 
for every other purpose, and the conundrum arising from 
from the definition of a " bastard " in the Statute of 
Merton might easily have been got over by the sup- « 
position of law upon which such legitimation proceeds 
— that a prior marriage had been contracted though not 
declared till after the birth of the child. The notion 
that there is some peculiarity in the tenure of common 
soccage land whereby it must descend to a son de facto 
born in wedlock, as borough English land goes to the 
youngest son, is in my opinion a fiction to support a 
miserable technicality. ' 

The bias which chiefly carried Abbott's mind astray 
when it missed the object to which it was directed was 
a suspicion of fraud. He had a very indifferent opinion 
of human nature, and at times he seemed to believe all 
mankind to be rascals. He delighted in discovering what 
he considered a fraudulent contrivance on the part of the 
plaintiff or of the defendant, and in unraveling it. I 
have heard Scarlett jocularly boast that he got many a 
verdict by humoring this propensity — "just giving the 
hint very remotely to the Chief Justice, and allowing his 
Lordship all the pleasure and the 6clat of exposing and 
reprobating the cheat." This dexterous advocate cer- 
tainly did at last prevail upon him to lay down a rule 
which, while it was acted upon, materially obstructed the 
transfer of negotiable securities — that " where a bill of 
exchange has been lost or stolen, a subsequent holder, 
although he has given a. valuable consideration for it, 
cannot maintain an action upon it if the jury should 
think that he took it under circumstances which ought to 
have excited the suspicion of a prudent and careful man." 

' Doe d. Barthwistle z Vardill, 5 B. and C. 438. This decision lowered 
us terribly not only in the opinion of Scotch but of French and American 
lawyers. Professor Storey was very strong against it. 



3i6 REIGN OF GEORGE III. [1818— 

The rule having before been that the title of the holder 
for value could only be impeached by proof of fraud," 
the new doctrine was questioned and thus defended : 

Abbott, C. J.: "I cannot help thinking that if Lord 
Kenyon had anticipated the consequences which have 
followed from the rule laid down by him in Lawson v. 
Weston, he would have paused before he pronounced 
that decision. Since then the practice of robbing stage- 
coaches and other conveyances of securities of this kind 
has been very considerable. I cannot forbear thinking 
that this practice has received encouragement by the 
rule laid down in Lawson v. Weston, which gives a fa- 
cility to the disposal of stolen property of this descrip- 
tion. I should be sorry if I were to say anything, sitting 
in the seat of judgment, that either might have the 
effect or reasonably be supposed to have the effect 
of impeding the commerce of the country by pre- 
venting the due and easy circulation of paper. But it 
appears to me to be for the interest of commerce that 
no person should take a security of this kind from anoth- 
er without using reasonable caution. I wish that doubts 
had been thrown on the case of Lawson v. Weston at an 
earlier time, and then this plaintiff would have con- 
ducted himself more prudently, and would not have suf- 
fered." 

The new fashion took amazingly. This rule of " cir- 
cumstances to excite suspicion of a prudent and careful 
man " was adopted by all the Judges, and was applied 
to all cases where the owner of any negotiable instru- 
ment had once been induced by improper means to part 
with the possession of it, as well as to cases of accidental 
loss and of robbery. But the rule died with its author 
It was soon much carped at : some Judges said that 
fraud and gross negligence were terms known to the law 
but of " the circumstances which ought to excite sus- 
picion," there was no definition in Coke or Cowell — and 
the complaints of bill brokers resounded from the Royal 
Exchange to Westminster Hall, that they could no 
longer carry on their trade with comfort or safety. The 
consequence was that in the course of a few years by 
decisions in all the Courts at Westminster, the doctrine 

' Lawson v. Weston, 4 Esp. 56. 



1827.J LORD TENTERDEN. 317 

of " suspicion " was completely exploded, and the old 
rule restored that the claim of the holder of a negotiable 
security who gave value for it before it was due, although 
he may have received it from a person who could not 
have sued upon it, can only be defeated by proof of mala 
fides on his part.' 

Notwithstanding these imperfections, failings, and 
errors, which it has bee|[ my disagreeable duty to allude 
to, I have pleasure in quoting and corroborating the 
testimony in the Chief Justice's praise of his contemp- 
orary and friend Sir Egerton Brydges, which shows the 
general estimation he enjoyed among his countrymen : 
" With what admirable skill, honor, and steadiness he 
fulfilled the most laborious, most difficult and over- 
whelming duties of his high station is universally ac- 
knowledged." 

I am reluctant to bring to a conclusion my observa- 
tions upon Abbott as a great magistrate, for in this ca- 
pacity he excites almost unmixed admiration and re- 
spect. But in the last years of his life his destiny made 
him a political character, and although he still acted 
honorably and conscientiously, he by no means added 
to his permanent fame. I cannot help wishing indeed 
that like HOLT he had died a commoner. The coronet 
placed on his brow might raise his consequence with the 
vulgar, but in the eyes of those whose opinion was worth 
regarding he was a much gieater man when, seated on 
his tribunal, with conscious mastery of all that belonged 
to his high office, he distributed justice to his admiring 
fellow subjects, than when he sought to sway a legisla- 
tive assembly with which he was wholly unacquainted, 
and to which he was wholly unsuited. 

' Goodman v. Harvey, 4 Add. and Ell. 470, 




CHAPTER LIV. 

CONCLUSION OF THE LIFE OF LORD TENTERDEN. 

THE supposed elevation of the Chief Justice at this 
time, which exposed him to some censure, was no 
fault of his. He used confidentially to express 
surprise that his friend and patron Lord Chancellor 
Eldon, whose advice would have been implicitly fol- 
lowed by the Prime Minister and the King, had not 
raised him to the peerage when he became Chief Justice, 
but had actually resigned the Great Seal Without making 
him such an offer. He concluded that at any rate Sir 
Charles Abbott ought to have had the refusal of the 
honor in 1824, when Sir Robert Giffard was created a 
Baron, having 'filled only the inferior offices of Chief 
Justice of the Common Pleas and Master of the Rolls. 
But he made no application or remonstrance by reason 
of what might have been considered a slight, and I be- 
lieve that he would have been perfectly contented to 
remain Sir Charles Abbott. Knight, for the rest of his 
days. Lord Eldon's conduct is very inexplicable in 
withholding a peerage from one who from his high office 
had a fair claim to it, of whom he could have felt no 
jealousy, who had been many years his devil and- de- 
pendant, and with whom his word in the House of 
Lords would have been law. Can we suppose that he 
was actuated by a disinterested study of Abbott's real 
good ?' 

' Since writing the statement in the text respecting Abbott's peerage, I 
have been favored with a perusal of his Diary, from which I make the 
following extract, showing that he had become more desirous of having his 
blood ennobled than could have been suspected from his usual moderation 
and good sense, and from the sentiments which he himself had expressed 
in his letter to Sir Egerton Brydges [ante, p. 296] : — 

" AJ:ril 7, 1S24.— Lord Giffard took his seat in the House of Lords on the 
first day of the Session, and within a day or two afterwards a patent issued, 
appointing him to act as Speaker of the House of Lords in the absence of 
Vhe Lord Chancellor. A few days aftenvards, the Lord Chancellor, with 



1827.] LORD TENTERDEN. 



319 



However, he was most unexpectedly made a peer on 
the disgrace of that patron in all whose notions respect- 
ing State and Church he fully coincided, by a Prime 
Minister whom he had never seen, and whose principles, 
although they were not altogether Whiggish, he con- 
sidered dangerously latitudinarian. 

Mr. Canning, the warm friend of religious toleration, 
having agreed to form a balanced cabinet with anti- 
Catholic Lord Chancellor, Sir John Copley, still in 
dreadful apprehensions of the Pope, although on the 
verge of a sudden conversion to Catholic emancipation, 
had agreed to take the Great Seal, and was to be raised 
to the peerage by the title of Baron Lyndhurst. More- 
over, Plunket, upon a slight show of opposition from the 
bar, having renounced the office of Master of the Rolls 
in England, and accepted the office of Chief Justice of 
the Common Pleas in Ireland, was likewise to be made 
a British peer by the family name, which his eloquence 
had rendered illustrious. It was thereupon suggested to 
the new premier by Scarlett, long his intimate private 
friend, and now his Attorney General elect, that it would 
be a graceful act in public estimation, and would throw 

some hesitation and appearance of difficulty in introducing the subject, 
asked me what my feelings had been on Lord G.'s promotion to the peer- 
age ? I told him I had felt very little as it regarded myself, but much as it 
regarded my office, being higher than Lord G.'s. He asked whether I should 
think it right to move in the matter myself or to leave it to him ? I told 
him I certainly should not think it right to move in it myself. All that I 
could collect further was that some of the Ministers had thought it not 
necessary to propose a peerage to me on the present occasion, because it 
was conferred on Lord G. for the special purpose of enabling him to sit in 
the House of Lords to hear appeals. I remarked that though I could not 
give my eldest son a fortune by any means suitable to the dignity, yet, under 
present circumstances, I should hardly think myself at liberty to refuse the 
honor, and should leave my son to make such advantage as he could of it, 
being sure he would never disgrace it by his conduct." 

In a letter to the second Lord Kenyon, Lord Eldon professes to explain 
his sincere views respecting Abbott's peerage . " I agree with you that 
generally speaking, the Chief Justice of the King's Bench should be a peer, 
even if there had been no usage on the subject. Now, as to Abbott, his 
practice has been behind the bar. He never had any office — I think not a 
silk gown. He enters therefore on the office in very moderate circum- 
cumstances, with a considerable family. His health is tender, and his eye- 
sight not in a very safe state. Upon the whole, his own difficulty about 
taking the office was the apprehension that peerage was to go with it. This 
determination appears to me to have been quite right." — Lives of Chan- 
cellors, vol vii. p. 338, 3d ed. 



320 REIGiv u±' iSMUKUH J-IJ. Li^^7- 

some obloquy on Lord Eldon, whom they both heartily 
hated, and who heartily hated them both, if a peerage 
were given to Lord Eldon's neglected prot^gi, the Chief 
Justice of England. Accordingly Mr. Canning, in a letter 
to him, dated 19th April, 1827, after an introduction of 
polite eulogy, said — " As in the approaching law pro- 
motions more than one peerage will be conferred by his 
Majesty, it has occurred to Mr. Canning as due to Lord 
Chief Justice Abbott, to his Lordship's eminent services, 
and to the dignity of the Court over which he presides, 
that an opportunity should be offered to the Lord Chief 
Justice to express his willingness (if he entertains it) to 
accept a similar honor, which his Majesty is ready 
graciously to bestow upon it." The answer expressed 
humble and grateful acquiescence — upon which im- 
mediately came a notice from the Home Office that the 
inchoate peer should notify his choice of a title, and that 
a sum of money, about ;£'8oo, should be deposited for the 
fees of the patent. He was afraid of jests if he should 
become " Lord Abbott," and he thought of the title of 
Hendon, where he had a villa ; but he was advised to 
have something more sounding, and Tenterden being 
familiar to him as a Kentish man, from the well-known 
connection between the first appearance of its steeple 
and of the Goodwin Sands, the Gazette announced that 
" his Majesty had ordered letters patent to pass the 
Great Seal, to create Sir Charles Abbott, Knight, a Baron 
of the United Kingdom, by the name, style, and title of 
Lord Tenterden, of Hendon, in the County of Middle- 
sex." 

On the 2d of May following there was a grand ova- 
tion in Westminster Hall, to do honor to the solemnity 
of his taking his seat in the House of Lords. Sir James 
Scarlett, the Attorney General, mustered an immense 
congregation of barristers, and we followed the new 
peer, as yet only in his judicial robes, from the Court of 
King's Bench to the room of the Earl Marshal. There 
he was habited in his peer's robes, and marching be- 
tween Lord Bexley and Lord Kenyon, he entered the 
House, and presented his patent and writ to the Lord 
Chancellor. We all stood under the bar, and the space 
being too small for us, such a serried conglomeration of 



t827.] LORD TENTERDEN. 



321 



wigs never was seen before or since. We could hear 
nothing of the patent, the writ, or the oaths which were 
read, but we witnessed the procession through the 
House, headed by the Earl Marshal, and our Chief being 
seated by Garter King at Arms on the Barons' bench, 
we joyfully took our departure. Next morning in Court 
the new peer threw down the following note, which was 
handed through all the rows till it reached the junior 
of our body : — 
Dear Mr. Attorney, 

" I was indeed gratified yesterday by the flattering 
attention which I received from the Bar. Assure them 
that it went to my heart. 

" Ever most faithfully yours, 

" Tenterden." 

He continued to attend the House for some time very 
diligently, much pleased with his new honors, and after- 
wards as often as he entered it he wore his judicial cos- 
tume, being the last Chief Justice who ever did so, when 
not officiating as Speaker. There was franking in those 
days, and he was pleased to say to me that " he consid- 
ered this privilege to be conferred upon him for the 
benefit of the profession." He really was tickled when 
asked for a frank, and a glow of satisfaction might be 
descried on his countenance as he was writing, " Free — 
Tenterden." But he soon looked as if he considered 
it rather a liberty to ask him for a frank — particularly 
after he discovered that when on the circuit, sitting in 
Court, surrounded by country Justices, a graceless youth 
had made him frank a letter to a young lady of noto- 
riously light character in London. 

Lord Tenterden's maiden speech was his most suc- 
cessful (I might say his only successful) effort as a par- 
liamentary orator. Luckily the subject was quite in his 
own line as a lawyer. A young heiress of 15 had been 
decoyed away from a boarding school by a profligate ad- 
venturer, whose object was her fortune, and had been in- 
duced to marry him. As he thought his scheme com- 
pletely successful the moment the marriage ceremony 
had been performed, her friends had an opportunity to 
rescue her before any further injury had been inflicted 
upon her. They prosecuted him for the abduction, and 



322 REIGN OF GEORGE III. [1827. 

he was convicted and sentenced to a long imprisonment. 
They then presented a petition to the House of Lords, 
with her concurrence, praying that the marriage might 
be dissolved. He presented a counter-petition praying 
that the House would make an order for his being 
brou'ght up to defend his marital rights. The Earl of 
Lauderdale, who had been called to the Scotch bar, pos- 
sessed at that time great weight as a " Law Lord," and 
he contended that although there had been instances of 
dissolving by Act of Parliament the marriage of a young 
lady brought about by force, the present marriage, having 
been solemnized with the consent of both parties, could 
not be dissolved without a violation of principle nor 
without establishing a very dangerous precedent. 

Lord Tenterden recapitulated all the facts of the case 
as if he had been summing up to a jury. He said " the 
principal offender and his accomplices had been con- 
victed of a conspiracy originating in the basest motives 
of lucre, and conducted by fraud and forgery. He 
thought the House bound to afford the relief prayed. 
The friends of the unfortunate girl had done all in their 
power to vindicate the law, and now came to the Legis- 
lature for that relief which the peculiar nature of the 
case demanded. Although there had been here no ac- 
tual force, the law says that fraud supplies the place of 
force. Possibly the marriage might be declared null and 
void by sentence of the Ecclesiastical Court, but if pro- 
ceedings were to be instituted for that purpose, their 
Lordships must recollect the great delay which must 
take place and the anxiety and distress to which the par- 
ties must be subjected in the mean time. The pretended 
husband had the audacity to complain of hardship, but 
his punishment had been light compared with the enor- 
mity of his offense. Their Lordships were bound to in- 
form him and all others who possessed themselves of 
the persons of young women for the sake of base lucre, 
that they not only exposed themselves to the penalties 
which the Courts of law might inflict, but that there is 
a power in the country which will deprive them of all 
possibility of ever reaping any advantage from their 
crimes." ' 

' 17 Pari. Deb. S82. 



e 



'827.] LORD TENTERDEN. 323 

Leave was given to bring in the Bill, and it afterwards 
quietly passed through both Houses and received the 
Koyal assent. 

Before Lord Tenterden again opened his mouth in the 
House of Lords, Mr. Canning had fallen a victim to the 
aristocratic combination against him; Lord Goderich, 
the most imbecile of prime ministers, after a few weeks 
of premiership had ingloriously resigned ; the Duke of 
Wellington and Peel were at the head of affairs ; and a 
Bill had come up from the House of Commons to repeal 
the Corporation and Test Acts. These our Chief Justice 
had been taught to believe, and did potently believe, to 
be the two main pillars of the Church, and he was ab- 
solutely horrified to find that they were in danger 
from a joint assault of Whigs and liberal Tories. The 
Earl of Eldon remained true to his colors : but, sad to 
relate, Lord Lyndhurst and the Duke of Wellington 
himself meditated desertion. 

The enemies of the Bill did not venture to attempt to 
throw it out on the second reading, and confined them- 
selves to attempts to damage it in committee. Lord 
Tenterden finding that there was no chance of retaining 
the " Test Act," which applied to all offices and places 
of profit and power under the Crown, and if strictly en- 
forced prevented any member of the established church 
of Scotland from holding a commission in the army or 
being an exciseman in any part of the United Kingdom, 
made a desperate struggle in favor of the " Corporation 
Act," whereby dissenters were excluded from the offices 
of mayor, alderman, common councillor, and all other 
offices in all municipal corporations in England. Not 
meeting with any sympathy with his attachment to the 
Corporation Act in its integrity, he moved an amend- 
ment whereby at least the office of chief magistrate in 
towns should not be polluted by being held by a dis- 
senter. He held that the Church was and ought to be 
supported as a part of the constitution ; and he there- 
fore proposed that in the declaration to be made by the 
mayor or chief magistrate of any municipal corporation 
these words should be inserted : — " I entertain no 
opinion on the subject of religion which may or can pre- 
vent me attending the morning and evening service of 



324 REIGN OF GEORGE III. [1828 

the Church of England, as set forth in the Book of Com- 
mon Prayer." The Bishop of Chester asked whether, 
as the law would still stand, a corporate magistrate 
would not be prevented from attending a dissenting 
place of worship in the insignia of his office ? Lord 
Tenterden answered " that it might be so, but still he 
thought that his amendment would be useful." Upon 
a division there were only 22 contents against III non- 
contents.' He succeeded, however, by a suggestion which 
he offered, in excluding Jews from municipal corpora- 
tions, till in the year 1844 they were admitted by an Act 
brought in by Lord Lyndhurst, and passed during the 
administration of Sir Robert Peel. The first form of 
declaration proposed by Lord Tenterden was : " I recog- 
nize the Books of the Old and New Testament accord- 
ing to the authorized version as truly expressing the 
revealed will of God." But to this the Duke of Wel- 
lington objected, as it would exclude Roman Catholic 
officers from the army. Thereupon Lord Tenterden 
prompted a bishop to move the introduction of the 
form used in the oath of abjuration — " on the true faith 
of a Christian," and this being considered unobjection- 
able was agreed to without a division. 

The Bill, even with the substituted declaration, the 
Chief Justice still condemned as fatal to the Church. 
It is wonderful that a man of his religious feelings should 
have had no objection to the desecration of the most 
solemn rite of Christianity by requiring it to be ad- 
ministered for a political purpose' — and that a man of 
his shrewdness did not anticipate the certain declension 
of the Dissenters as soon as they should be deprived of 
this invaluable grievance.^ 

If he disapproved of the conduct of the Government 
in 1828, for supporting the bill introduced by Lord John 
Russell in favor of Protestant Dissenters, what must 

' 18 Pari. Deb. 1609. 

' I well remember the time when barristers, who had not been at church 
for inany years, on being appointed King's Counsel, used to go to St. 
Martin's Church (appropriated for this purpose), pay their guinea, and 
bring away a certificate of their having taken the Sacrament of the Lord's 
Supper according to the rites and ceremonies of the Church of England. 

• The Church has ever since been gaining ascendency over the Dissenters, 
and has now only to fear internal divisions. 



1829. J LORD TENTERDEN. 325 

have been his sensations when, in 1829, he heard, on au- 
thority which could no longer be distrusted, that the 
Duke of Wellington and Sir Robert Peel were about to 
introduce a Bill to remove all disabilities from Roman 
Catholics and to allow them to sit in both Houses of 
Parliament ! On the second reading of the Bill, Lord 
Tenterden made a speech, the beginning of which was 
attentively listened to, and is said, from the solemn tone 
and manner of the speaker, to have been very impres- 
sive : — 

" My Lords," said he, " I would not now have offered 
myself to your Lordships in my individual capacity ; 
but, thinking that it may be expected that a person in 
my situation should not give a silent vote against this 
portentous measure, I am induced to stand up and ex- 
press my sentiments upon it. Several noble Lords who 
have supported it have denominated themselves ' the 
friends of civil and religious liberty.' If by assuming 
that title they mean to insinuate that those who differ 
from them as to the fitness of the proposed innovation 
are not the friends of civil and religious liberty, I for 
one must enter my protest against such an impntation. 
Every man may be mistaken in his opinion — he may 
even be mistaken in the motives on which he is acting — 
but, for myself, I have no hesitation in asserting that the 
very reason for my opposition to the present measure is 
derived from an attachment to civil and religious liberty. 
I have all my life admired the Protestant Church of Eng- 
land. I should have been the most ungrateful of men 
if I had not done so. My esteem for that church, which 
grew with my growth and strengthened with my strength, 
has not declined since the bodily feebleness of age has 
been stealing on me, but is increased by the perils to 
which she is now exposed. Not only am I actuated by 
religious considerations, but by the fixed conviction that 
our Protestant church is more favorable to civil and re- 
ligious liberty than any other established church which 
either does at present exist, or has ever before existed 
in the world. Can I support a measure which I am sure 
by a broad and direct road leads to the overthrow of 
this Protestant church ? We have been told of countries 
in Europe in which Roman Catholics and Protestants 



326 REIGN OF GEORGE III. [1829. 

have been found to go on very amicably together. But 
is there any other country in Europe or elsewhere which 
bears any resemblance to Ireland ? In Ireland there is 
an acknowledged Popish hierarchy, assuming to them- 
selves the names and titles of those dioceses which by 
law belong to Protestant prelates. And is it to be sup- 
posed that any hierarchy — let alone a Popish hierarchy — 
would be content to leave others in the enjoyment of 
those honors and emoluments which were wrested from 
their ancestors of the same faith with themselves? Is it 
possible that there should not exist in the human mind 
an earnest and anxious desire to obtain the restitution 
of these privileges ? And will not strength be given to 
persons of the Roman Catholic persuasion to effect their 
object by granting them political power? By political 
power I mean a power exercised according to legitimate 
means ; I cannot consent to give that designation to 
mere physical force or the power of numbers, which, if 
properly resisted, I do not dread." 

He then went into a long, tiresome enumeration of all 
the acts pa.ssed against Roman Catholics since the Ref- 
ormation down to the Union with Ireland, and set the peers 
on both sides of the House a-yawning, although they 
were too well bred to cough, or in any way intentionally 
to interrupt him. He concluded by declaring his con- 
viction that, although the measure might for a time pro- 
duce tranquillity, such tranquillity would not be of long 
duration — and would only be the deceitful stillness which 
precedes the storm, and that hereafter the combination 
of physical force and political power would be fatal to 
the empire. 

Earl Grey spoke next, and thus began in a strain 
something between compliment and sneer : — 

" I too, my Lords, am very reluctant to offer myself 
to your notice. I rise with a considerable degree of fear 
lest presumption should be imputed to me for attempt- 
ing to follow the noble and learned Lord, the Chief Jus- 
tice of England, who has just delivered his opinion, and 
who has rested the greater part of the argument which 
he addressed to your Lordships on a review of the laws 
which bear upon the situation of his Majesty's Roman 
Catholic subjects, and whose great learning, professional 



'829.) LORD TENTERDEN. 



327 



habits, and high authority give him claims to your Lord- 
ships' attention to which I cannot pretend." 

He commented upon all the statutes which had been 
quoted, contending that none of them presented a per- 
manent bar to the claims of the Roman Catholics. When 
he came to the Bill of Rights, and alluded to the declara- 
tion, that to keep and carry arms was the right of the 
subjects of this realm. Lord Tenterden interjected 
"being Protestants." Earl Grey: "Well, my Lords, 
of the Protestant subjects — it makes no difference in my 
argument: among all the provisions of the Bill of 
Rights the noble and learned Lord does not find it any- 
where stated that Roman Catholics are to be for ever 
excluded from the enjoyment of the rights of the British 
constitution." 

The Chief Justice fared no better when, on Lord 
Grey's statement that Parliament had enacted in the 
reign of William and Mary that every officer of the 
army and navy shall take the oath of supremacy before 
receiving his commission, he exclaimed, " It was a sep- 
arate Act." Earl Grey : "Yes, it was a separate Act 
(i W. and M. c. 8, s. 10) ; but it was as much a part of 
the measures of the Revolution as the law which re- 
quired that the members of both Houses of Parliament 
should take the oath of supremacy. Although an ad- 
ministration to which I belonged was overturned by an 
attempt slightly to modify that Act, it was afterwards 
totally repealed by the very men who raised against us 
the cry that the Church was in danger, — the Earl of El- 
don from the woolsack giving the royal assent, — and 
both services were thrown open to Roman Catholics, — 
as both Houses of Parliament, I hope, will shortly be, — 
notwithstanding his opposition and that of the noble 
and learned Lord, — who perhaps was not fully aware of 
his apparent inconsistency." ' 

I have heard Lord Tenterden, without any diminution 
of my respect for him, oppose the Catholic Relief Bill 
— which, though a necessary, was a perilous measure,— 
the ominous prophecies about which certainly have re 
ceived some verification by subsequent Papal aggression 
But I felt much disgust from his violent and vulgar op 

' 2X Pari. Deb. 300. 



328 REIGN OF GEORGE III. [1829. 

position to a bill which I had materially assisted in 
carrying through the House of Commons, to put an end 
to the system of robbing churchyards of dead bodies, 
and to the crime of committing murder for the supply of 
subjects for dissection to schools of anatomy. He 
utterly misrepresented the Bill, by saying that all who 
went into hospitals hereafter must lay their account with 
their bodies being " dissected and anatomized, as if they 
were hanged for willful murder." To excite prejudice 
and passion against that which must evidently be co«n- 
ducive to decency and humanity; he added, in a piteous 
tone, that " the poor justly felt an unconquerable aversion 
to the dissection of their bodies, which would not be 
overcome by the most solemn assurance that they 
would afterwards receive Christian burial." The practice 
of " Burking," which had brought such disgrace upon 
Edinburgh, he declared might in future be prevented by 
a newly-discovered test, which enabled any skillful 
medical man to ascertain whether a person whose body 
was offered for sale had died by disease or violence, and 
so, the market for murdered dead bodies being spoilt, 
murders to obtain them for sale would cease. These 
arguments, coming from a Chief Justice, made a con- 
siderable impression on the Episcopal bench and Con- 
servative peers, and the Bill was lost. However, proof 
being given him that, in spite of the continuing atrocities 
of resurrection-men, anatomy could not be taught under 
the existing system, the Bill was allowed to pass in the 
next session of Parliament, and it has been found to 
operate most beneficially.' 

Lord Tenterden likewise strenuously opposed the Bill 
for taking away the capital punishment from the crime 
of forgery, which had long been considered, even by en- 
lightened men, indispensably necessary for our com- 
mercial credit. He said, " When it was recollected how 
many thousand pounds, and even tens of thousands, 
might be abstracted from a man by a deep-laid scheme 
of forgery, he thought that this crime ought to be visited 
with the utmost extent of punishment which the law 
then wisely allowed." ' 

Nevertheless he was by no means, like Eldon and 

' 21 Pari. Deb. 1749. 'J 25 Pari Deb. 354. 



r83o,J LORD TENTERDEN. 



329 



Kenyon, ^ bigoted enemy to law reform. When com- 
missions were issued by Peel, on the suggestion of Lord 
Brougham, for this laudable object, he allowed his own 
name to be introduced into that for inquiring into the 
procedure of the ecclesiastical courts ; he assisted in 
pointing out proper commissioners for the others ; ' he 
encouraged their labors, and when they had made their 
reports, he employed himself in drawing Bills to carry 
their suggestions into effect. 

Thus he wrote in the summer of 1830 to his old friend 
Sir Egerton ; " You are probably aware that we had 
three commissions, one on the practice and proceedings 
of the superior Courts of Common Law, another on the 
Law of Real Property, and a third on the Ecclesiastical 
Courts. Two reports have been made by each of the 
two first — none by the latter, of which I am a mem- 
ber. The reports contain recommendations and pro- 
posals for many alterations, some of which I think useful 
and practicable. Something, however, must be done by 
the Legislature to satisfy the public mind ; and under 
this impression I have employed myself since the circuit 
in preparing no fewer than five bills, intended chiefly to 
give some further powers to the common law courts, and 
make some alteration in the practice, but without in- 
fringing on any important principle, adopting some of 
the recommendations, with some alterations from the 
proposals. I wish it were possible to cure the evil you 
so justly complain of. Whatever shortens and simplifies 
will be calculated to save expense ; but Acts of Parlia- 
ment cannot make men honest. I doubt whether an act 
to subject bills for convenancing to taxation would effect 
much. As I think they ought to be, I would willingly 
promote such an act ; but if I bring my five bills before 
Parliament, I shall have done at least as much as I ought 
to do, and perhaps more, though, to say the truth, I have 
one more bill on the anvil, and have had for at least 
three years, without the courage to propose it. It has 
had much of the limce labor. Indeed, to say the truth, 
this lima labor is an occupation by no means disagreeable 
to my mind." 

' By his advice I was myself placed at the head of the Real Property 
Commission. 



330 REIGN OF GEORGE III. yii^o 

The Bills respecting the procedure of the Common 
Law Courts, embodying the suggestions of the Com- 
missioners, passed without opposition, and almost with- 
out notice, but that on which the limce labor had been 
so long bestowed, and which was peculiarly his own, 
caused a good deal of discussion. The object of it was 
to define the periods of time which will confer a title to 
certain rights by enjoyment, without a reference either 
to prescription or grant, and to rectify the injustice 
which arose from claims to tithe being brought forward, 
notwithstanding exemption from payment of tithe or 
the existence of a modus for centuries, during which the 
advowson of the living and the land in the parish had 
been sold upon the footing of the exemption or the 
modus. In introducing his Bill in the House of Lords 
he thus tried to make it intelligible to his unwilling 
hearers : " Your Lordships may be aware that many 
rights can only be established on the supposition that 
they have existed ' for time whereof the memory of man 
runneth not to the contrary ;' and that this period de- 
nominated ' legal memory or '■prescription ' extends so 
far back as the commencement of the reign of Richard 
L, or as some say, only to his return from the holy war. 
But it is hardly ever possible to trace a right so far back 
by direct evidence, and Judges are obliged to tell juries 
that from modern enjoyment they may presume the ex- 
istence of the right in very remote times. This, how- 
ever, leads to great uncertainty, for Judges may differ 
as to what is a reasonable ground for the presumption ; 
and if evidence is offered, showing that during any reign 
since Richard L the right did not, or could not exist, it 
is gone for ever. Again, some rights may be claimed 
by grant from the owner of the land over which they 
are to be exercised, and after an enjoyment of them for 
a certain period of time, Judges have been in the habit 
of calling on juries to presume that such a grant has 
been made, although it is not forthcoming, and in truth 
never had existence. But besides the scruples of some 
Judges and some jurors against resorting to this fiction 
it is, occasionally insufficient from legal technicalities to 
protect long enjoyment. I conceive that it will be much 
better to follow the example of all other civilized na- 



1 83 1.] LORD TENTERDEN. 331 

tions, and to enact that after undisturbed enjoyment for 
periods to which direct and satisfactory evidence may 
be applied, the right shall be conclusively established, 
and I propose periods of sixty, forty, thirty, and twenty 
years, under different modifications and conditions ac- 
cording to the nature of the right — whether it be to take 
part of the profits of land, or only to exercise an ease- 
ment over it. Thus the right to common of pasture, to 
common of estovers, to ways, to light, air, and water, will 
be respectively regulated and provided for. The next 
subject to which I have to draw your Lordships' atten- 
tion is the claim to tithes. At present, under the maxim 
nullum tempus ecclesim, a modus, or small payment in 
lieu of tithes, may be challenged and set aside, unless 
it is supposed to have existed so far back as legal mem- 
ory. Here again the doctrine of presumption is resorted 
to, but it will surely be much better that some reasonable 
time should be fixed, during which positive proof of the 
modus shall be required, and that then the modus shall 
be unchangeable. Farther, non-payment of tithes for any 
length of time operates no exemption, unless the land 
can be proved to have belonged to a religious house be- 
fore the Reformation, and thence much expensive and 
vexatious litigation ensues. I propose to make the pay- 
ment of a modus or entire non-payment for thirty years 
sufficient to establish the modus or exemption, unlfess a 
contrary practice can be distinctly proved at some ante- 
cedent time, and where the evidence extends to sixty 
years to make the right claimed by the occupier of the 
land to pay a modus, or to be altogether exempt from 
papment, absolute and indefeasible. I am, my Lords, 
most sincerely attached to the clergy of the Church of 
England ; I should be most ungrateful if I were not so ; 
but it is better for them as well as for their parishioners 
that a permanent peace should be concluded between 
the parties on the basis of uti possidetis. I doubt not 
that the clergy have much oftener lost what strictly be- 
longed to them than gained by usurpation. Having 
seen the bad effects of the warfare which has been car- 
ried on, I must say Peto Pacem. Tithe suits almost 
invariably cause personal dissensions in the parish, and 
lessen the usefulness of the incumbent, but they not un 



332 



REIGN OF GEORGE III. [1831 



frequently involve him in expense which he can ill 
afford, and turn out disastrous for himself and his 
family." 

Lord Chancellor Brougham highly complimented the 
Bill, and it was read a first time, but on account of the 
speedy dissolution of Parliament it was lost for that 
Session. In the following year Lord Tenterden again 
brought forward the measure, dividing it into two Bills, 
one " For shortening the time of Prescription in certain 
cases," and the other " For shortening the time required 
in claims of modus decimandi, or exemption or dis- 
charge of tithe." They both passed' exactly as he 
framed them, — but I am sorry to say that although they 
proceed on very good principles they have by no means 
established for him the reputation of a skillful legisla- 
tor. The Judges have found it infinitely difficult to put 
a reasonable construction upon them, and, in adapting 
them to the cases which have arisen, have been obliged 
to make law rather than to declare it." 

An opportunity occurring to him of expressing his 
general opinion upon " Parliamentary privilege," he 
showed very plainly what his opinion would have been 
been respecting the questions on this subject which arose 
after his death. Lord Brougham, the Chancellor, being 
rather hostile to Parliamentary privilege, had expressed 
a doubt respecting the power of the House to fine and 
imprison for libel. Lord Tenterden : " All the Courts of 
Westminster Hall exercised this privilege, and how can 
it properly be denied to your Lordships ? In what cases, 
under what circumstances, and to what extent your 
Lordships should exercise this privilege, it is for your 
Lordships to determine — but the privilege is clear, dis- 
tinct, and indisputable — being conferred not for the pro- 
tection of those who possess it, but for the sake of the 

' 2 and 3 Wm. IV. c. 71, and 2 and 3 Wm. IV. c. 100. One of his 
biographers has likewise given to him the credit of 3 and 4'Wm. IV. c. 27, 
for abolishing real actions and making a uniform rule as to the title to lands 
from enjoyment. — Townsend, vol. ii. 272. Having drawn it myself, with 
the assistance of my brother Commissioners, I can testify that he never 
saw it till it was in print. 

' On one question which arose respecting exemption from tithes, a case 
was sent by the Lord Chancellor successively to the Court of Common Pleas, 
the Court of Queen's Bench, and the Court of Exchequer, and in each Court 
th" Judges were equally divided upon it 



'831.] LORD TENTERDEN. 



333 



e 



public and for the good government of the nation. Th. 
very principle of our constitution requires that the two 
Houses of Parliament should possess all the powers 
necessary for enabling them to perform the functions 
which it assigns to them." ' 

I now come to the measure which he considered fatal 
to the monarchy, which drove him from the House of 
Lords, and which probably shortened his days— the 
reform of the representation of the people in Parliament. 
On the 5th night of the debate on the second reading of 
the Reform Bill of 183 1, he rose and spoke as follows : 
" I feel it necessary to address a very few sentiments to 
your Lordships on this very important question. Many 
topics had occurred to me against this appalling Bill, but 
they have already been urged by others with more force 
and ability than I could have brought to the task. But 
there is one point on which I feel it my peculiar and sacred 
duty to address you — not so much in my character as a 
Peer, as in the character which the robes I wear remind 
me that I have to sustain. I find, my Lords, that the 
rights of almost all the corporate bodies in England, 
whether they are held by charter or prescription, are 
treated by this Bill, so far as I see, with absolute con- 
tempt. Many of them are to be annihilated, and the rest 
are to be despoiled of their privileges. I have listened 
in vain for any reason for the extent to which this 
destruction and spoliation are carried. I should be ready 
to run the risk of innovation were it intended only to 
transfer privileges from some decayed parts of the con- 
stitution to other more sound and healthy parts, which 
I believe in my conscience is all that is desired by the 
reasonable portion of his Majesty's subjects, by the 
middle classes, for whom I entertain as great a respect 
as any man (I may tell your Lordships that I feel a 
respect and affection for these classes, having sprung 
from them), but instead of such a reasonable and moder- 
ate measure, reconcilable with the institutions of the 
country, I find one going farther than the worst fears of 

' 3 Pari. Deb. 3d Series, p. 1714. Lord Brougham imputed to him a 
bluader, by supposing that he had attributed to the House of Commons, as 
well as to the House of Lords, the power of fining and imprisoning for a 
time certain. He merely excused himself on the ground that he had never 
been a member of the Lower House. 



334 



REIGN OF GEORGE III. [1832- 



alarmists had ever anticipated. On what footing is the 
measure rested ? Expediency alone ! My Lords, Ex- 
pediency is a tyrant whose will is made a pretext for 
every act of injustice. Corporate rights, hitherto held 
sacred, are now recklessly violated, and I will tell those 
who despise them that after this precedent the rights of 
property will be equally disregarded, and liberty and life 
itself will be sacrificed to expediency, or the appetite of 
the mob for plunder and blood. I conclude with repeat- 
ing that I consider myself in the situation which I un- 
worthily fill peculiarly bound to uphold the chartered 
rights of the people, and I hereby solemnly proclaim 
that the flagrant violation of these rights is of itself an 
insuperable objection to this Bill." 

I happened to be standing on the steps of the throne 
when this oracular denunciation was delivered, and I am 
sorry to say that the effect was rather ludicrous. The 
notion had never before entered the imagination of any 
man that the Chief Justice of England is ex-officio the 
Patron Saint of all municipal corporations, and that 
when they are in danger he is bound to appear Deus 
ex machint in their defense. 

The doomed Tenterden was soon after snatched away 
(happily perhaps) from the evil to come. How would he 
have comported himself when the " Municipal Corpora- 
tion Reform Bill" was brought forward, which actually 
did sweep away every close corporation in the kingdom, 
made every ratepayer a burgess, and created by popular 
election a Mayor, Aldermen, and Councillors in every 
borough, " all statutes, charters, and customs to the con- 
trary in any wise notwithstanding f " On the present oc- 
casion he was in a triumphant majority of 199 to 158 
against the second reading of the Parliamentary Reform 
Bill — and for some months longer he slept soundly, cor- 
porate rights remaining untouched.' 

But in the month of April following, the Parliament- 
ary Reform Bill again came up from the Commons ; and 
although it now very improperly preserved the franchise 
of the corrupt freemen. Lord C. J. Tenterden's hostility 
to it was in no degree mitigated. Accordingly, it was 
thus assailed by him in the last speech he ever delivered 

' 8 Pari. Deb., 3d Series, 301. 



1832.] LORD TENTERDEN. 



335 



in Parliament : " A safe and moderate plan of reform I 
should not object to ; but the question is, whether you 
will go further with the consideration of this bill — a bill 
which I have no hesitation in saying ought on no ac- 
count to be permitted to pass into a law. The bill 
evinces a settled disregard of all existing rights. In its 
disfranchising clauses it does more than can be at- 
tempted with safety, and in its enfranchising clauses it 
goes infinitely beyond the wants and the wishes of the 
country. The right of sending representatives to Par- 
liament is to be lavished not merely on great populous 
towns which have recently risen into opulence, but on 
villages and hamlets which have sprung up around them. 
Moreover, the elective franchise is to be placed, if not 
entirely, at least in a preponderating degree, in the hands 
of one class. If this had been a class of well-educated, 
well-informed men, still I should have objected to mak- 
ing it the sole depository of political power; but this 
class notoriously does not consist of such persons as I 
have just described. Those who belong to it are en- 
titled to your Lordships' superintending care and pro- 
tection; but they are unfit to become your masters. We 
are asked to go into a committee on the bill, because 
there it may be amended. In committee I should feel 
it my duty to move that the whole be omitted after the 
word ' that,' for it cannot be modified so as to be ren- 
dered innocuous. The principle of the bill is precisely 
the same with that which you have already rejected. It 
is said that we must not go against the wishes of the 
people and a decided majority of the House of Com- 
mons. But you must consider whether the fulfillment 
of such wishes would not be pernicious to the people ; 
and a majority of the House of Commons, however 
much entitled to respect, ought not to induce your 
Lordships to sanction a measure which you believe in 
your conscience would involve Lords and Commons in 
the general ruin. Let the bill be immediately rejected, 
for any protracted consideration of it can only lead to 
the delusion as well as to the disappointment of the 
public. We are threatened with calamitous consequences 
which may follow the rejection of the bill ; but I have 
no faith in such predictions. I never have despaired. 



336 REIGN OF GEORGE III. [1832. 

nor will now despair of the good sense of the people 
of England. Give them but time for reflection, and I 
am sure they will act both wisely and justly. Of late 
they have been excited by the harangues of ministers, 
by the arts of emissaries, and by the inflammatory pro- 
ductions of the periodical press. Let them have time 
to cool, and they will ere long distinguish between their 
real and their pretended friends. Already there is a 
growing feeling among the people that they have been 
following blind guides, and I believe there is a great ma- 
jority of the nation ready to adopt any measure of tem- 
perate reform. This measure, my Lords, leaves nothing 
untouched in the ejristing state of the elective franchise. 
It goes to vest all the functions of government in the 
other House of Parliament, and if it were to pass, there 
would be nothing left for this House or for the Crown, 
but to obey the mandates of the Commons. Never, 
NEVER, MY Lords, shall I enter the doors of this 
House after it has become the phantom of its de- 
parted greatness." 

There was still a decided majority of the Peers deter- 
mined that the bill should not pass. Nevertheless the 
expedient course was considered to be, that it should 
not again be thrown out in this stage, and the second 
reading was carried by a majority of 184 to 175.' 

For a few days there seemed reason to think that 
Lord Lyndhurst's manoeuvre would succeed. The King 
concurred in it, and a new administration was named to 
mutilate the bill. But the nation said No ! The King 
was obliged to agree, if necessary, to create the requisite 
Peers to carry " the bill, the whole bill, and nothing but 
the bill." The dread of being so " swamped" by fresh 
creations frightened away a great many of its opponents, 
Jind it quietly passed its subsequent stages unchanged. 

Lord Tenterden was as good as his word. After the 
Reform bill received the Royal assent he never more en- 
♦^ered the doors of the House. 

If he had survived a few years, he might have laughed 
at the disappointment of those who expected from 
this measure a new efa of pure public virtue and unin- 
terrupted n-ational prosperity ; yet he would have wit- 
' 12 Pari. Deb. 3d Series, 398, 454. 



LORD TENTERDEN. 337 

nessed the falsification of his own predictions; for, while 
individual peers ceased to be members of a formidable 
obhgarchy, the house collectively retained its place in 
the constitution, and, I believe, it has since risen in pub- 
lic estimation and in inflence. 

Lord Tenterden was sincerely convinced that the 
House and the country were doomed to destruction, and 
this conviction aggravated the disorders by which his 
enfeebled frame was now afflicted. In the following 
strain, although almost too feeble to support existence, 
he poured forth his anguish to Sir Egerton Brydges : — 

" Russell Square, May 20th, 1832. 

" My dear Sir Egerton, 

" I have made several attempts to write to you, 
but have found myself unable to do so ; nor can I write 
as I ought, or wish to do. My spirit is so depressed, 
that when I am strongly excited by some present object 
that admits of no delay, I sink into something nearly 
approaching to torpidity. My afTection for you remains 
unchanged. God bless you. 

" Your most affectionate friend, 

" Tenterden." 

Again, on the 8th of June, after addressing the same cor- 
respondent upon matters of inferior importance, he adds 
— " We differ upon the great measure that has so long 
agitated the country. I considered the Catholic Bill as 
the first, and I consider this as the concluding step to 
overturn all the institutions of the country. In my an- 
ticipations of the effect of the first, I have certainly not 
been mistaken. The present state of Ireland proves this. 
Would to God I may be mistaken as to the effect of the 
Reform Bill. Great alarm was felt yesterday from the 
Paris news. I heard to day that the Government pre- 
vailed in the conflict. I have no confidence in a tempo- 
rary triumph over a principle that I believe was never 
subdued, and can only be restrained by unintermitting 
coercion." 

He rallied a little, and got through the sittings after 
term pretty comfortably, giving his annual dinner to 
the King's counsel ; but instead of asking each of them 
to drink wine with him seriatim as formerly, he drank 
wine conjointly, first with all those who sat on his right 

IV, — 22. 



338 REIGN OF GEORGE III. 

hand, and then with all those on his left, hospitably ad- 
monishing them to drink wine with each other. 

In July he went the Midland Circuit, as the lightest 
he could choose, and he was able to sit in Court and 
finish the business at every assize town, notwithstanding 
the annoyance of a violent cough and other alarming 
symptoms. After a short stay at Leamington he re- 
turned to his seat at Hendon, and there spent the long 
vacation ; sometimes yielding to despondence, and 
sometimes trying to amuse himself with making Latin 
verses, and with classical reading, which used to be his 
solace. 

Being obliged to come to town for a Council to de- 
termine the fate of the prisoners convicted at the Old 
Bailey, he wrote to Sir Egerton Brydges the following 
melancholy epistle, which did not reach its destination 
till the writer was relieved from all his sufferings, and 
transferred to a better state of existence. 
" My dear Sir Egerton, 

" I came to town yesterday to attend His 
Majesty on the Recorder's report, and have received 
your letter this morning. I have lately suffered, 
and am still suffering, very severely from an inter- 
nal complaint, which they all an irritation of the 
mucous membrane. It troubled me during all the 
circuit. I got rid of it for a short time at Leaming- 
ton, but it soon returned with greater violence, and has 
for some time deprived me of appetite, and produced 
great depression of spirits. Sir Henry Halford, however, 
assures me that a medicine he has ordered me will in 
time remove the complaint, and my confidence in him 
induces me to trust it may be so, though after a trial of 
six days I cannot say that I find any sensible improve- 
ment. God bless you. 

" Your most affectionate friend, 

" Tenterden." 

However, his mental faculties remained wholly unim- 
paiued ; and he was determined " to die, like a camel in 
the wilderness, with his burden on his back." An im- 
portant Government prosecution, in which I was coun- 
sel — The King v. Mayor of Bristol— ^■a.s appointed to be 
tried at bar immediately before the Michaelmas Term. 



1827,1 LORD TENTERDEN. ' 339 

This excited prodigious interest, as it arose out of the 
Reform-Bill riots at Bristol, in which a considerable part 
of the city was laid in ashes. The Chief Justice ap- 
peared on the Bench with the other Judges, and con- 
tinued to preside during the first two days of the trial. 
I recollect one characteristic sally from him, indicating 
his mortal dislike of long examinations. Mr. Shepherd, 
the junior counsel for the Crown, having asked how 
many horses were drawing a messenger's post-chaise 
sent in quest of the Mayor, and being answered " four," 
Lord Tenterden sarcastically exclaimed in a hollow 
voice, " And now. Sir, I suppose you will next get out 
from your witness what was the color of the post-boys' 
jackets." But his bodily health was evidently sinking. 
When he went home in the evening of the second day 
of the trial he no appetite for the dinner prepared for 
him, and he fancied that fresh oysters would do him 
good. He ate some ; but they disagreed with him, and 
an access of fever supervening, he was put to bed, from 
which he never arose. Although attended by Sir Henry 
Halford, Dr. Holland, and Sir Benjamin Brodie, his dis- 
ease baffled all their skill. He became delirious and 
talked very incoherently. Afterwards he seemed to re- 
cover his composure, and, raising his head from his pillow, 
he was heard to say in a slow and solemn tone, as when 
he used to conclude his summing-up in cases of great 
importance, "And, now gentlemen, of the jury, you will 
consider of your verdict." These were his last words: 
when he had uttered them, his head sunk down, and in 
a few moments he expired without a groan. 

According to directions left in his will, his remains 
were, in a very private manner, interred in the vaults of 
the Foundling Hospital, of which he had been a gov- 
ernor. At the south-east entrance to the hospital is 
to be seen his monument, with the following modest in- 
scription, written by himself only two months before his 
death : 

" Prope situs est 

Carolus Baro Tenterden 

Filius natu minor 

Humillimis parentibus, 

Patre vero prudenti matre pii ortns 

Per annos viginti in causis versatua, 



340 REIGN OF GEORGE III. 

Quantum apud Britannos honestus labor 
Favente Deo valeat 
Agnoscas lector !" 

Underneath is added, by his pious son — 

" Haec de se coriscripsit 
Vir summus idemque omnium modestissimus." 

The impartial biographer cannot say that he was a 
great man — but he was certainly a great magistrate. To 
the duties of his judicial office he devoted all his ener- 
gies, and on the successful performance of them he rested 
all his fame. Authorship he never attempted in his life- 
time beyond his law book, which, although it passed 
through various editions, is already out of fashion and 
thrown aside, like an old almanac, as it was founded on 
statutes many of which have been repealed, and on de- 
cisions many of which have been reversed. A Diary 
which he kept, from November 1822, to February, 1825, 
now lies before me. The following commencement led 
me to expect much useful information and amusement 
from it : — 

" I have often wished that my predecessors had left a 
Diary, and that I was in possession of it." 

But I am grievously disappointed. It contains very 
little that is interesting to a succeeding Chief Justice or 
to any one else. The diarist not only abstains from all 
notice of public events, but he makes no remark of any 
value on any professional subject. He never hints at 
any defects or improvements in the administration of 
justice in his Court, and never introduces the name of 
any counsel who practiced before him. He confines 
himself to dry details of the number of causes tried at 
the sittings, and his expenses on the circuits. One might 
have expected some satirical allusions to his brother 
Judges, for whom he had not a very high respect; but 
nothing is said of any of them that might not have been 
published at Charing Cross. There is no ground for re- 
gret that the Diary was not begun sooner or continued 
later.' 

' Beyond the extracts which I have given, I find nothing more curion» 
than the following table of his expenses on the Circuit : — 

Sprmg, 1816 — Home 243 7 o 

Summer, 1816— Oxford 290 9 o 



LORD TENTERDEN. 341 

Neither on the Bench nor in society did he ever aim 
at jocularity or wit, although, by accident or design he 
once uttered a pun. A learned gentleman, who had lec- 
tured on the law and was too much addicted to oratory, 
came to argue a special demurrer before him. " My 
client's opponent," said the figurative advocate, " worked 
like a mole under ground, clam et secretL" His figures 
and law Latin only elicited an indignant grunt from the 
Chief Justice. " It is asserted in Aristotle's Rhetoric "— 
" I don't want to hear what is asserted in Aristotle's Rhet- 
oric," interposed Lord Tenterden. The advocate shifted 
his ground and took up, as he thought, a safe position. 
" It IS laid down in the Pandects of Justinian " — " Where 
are you got now ?" " It is a principle of the civil law " 
— '' Oh, sir," exclaimed the Judge, with a tone and 
voice which abundantly justified his assertion, " we have 
nothing to do with the civil law in this court.'" 

The extreme irregularity of the Judges in their con- 
ferences, which there has often been occasion to deplore, 
once forced him into the necessity of coining a word. 
He said he could not call them Parliamentum Indoctum, 
but that he might well call them Parliamentum Bab- 
litivuw,. 

He was courteous in company, but rather stiff and 
formal in his manners, as if afraid of familiarity and re- 
quiring the protection of dignified station — which prob- 
ably arose from the recollection of his origin and of his 
boyish days. He would voluntarily refer to these among 
very intimate faiends, but he became exceedingly uneasy 
when he apprehended any allusion to them in public. 
Once, however, he was complimented upon his rise un- 
der circumstances so extravagantly ludicrous that he 

Spring, 1817 — Western . 

Summer, 1817 — Norfolk 

Spring, 1819 — Norfolk . 

Summer, 1819 — Midland 

Summer, 1822 — Northern . 

Summer, 1824 — Western 
' Townsend, 261. I should rather think, notwithstanding the ^o* .fl/iV/irr 
of Garrick catching an orange thrown at him on the stage, and exclaim- 
ing, " This is not a aV// orange ?" that the Chief Justice's pun was unin- 
tentional, like that of Mr. Justice Blackstone, who says In his Comment- 
aries, with much gravity, that " landmarks on the sea-shore are often of 
signal service to navigation." 





• • • 323 


16 







. . . 251 


7 







. . 165 


15 







• . 274 


9 







. 203 


3 







374 









34.2 REIGN OF GEORGE III 

joined in the general shout of laughter which the orator 
called forth. Sir Peter Laurie, the saddler, when Lord 
Mayor of London, gave a dinner at the Mansion House 
to the Judges, and in proposing their health, observed, 
in impassioned accents, "What a country this is we live 
in ! In other parts of the world there is no chance, ex- 
cept for men of high birth and aristocratic connections ; 
but here genius and industry are sure to be rewarded. 
See before you examples of myself, the Chief Magis- 
trate of the Metropolis of this great empire, and the 
Chief Justice of England sitting at my right hand — 
both now in the highest offices in the State, and both 
sprung from the very dregs of the people !" 

Lord Tenterden is placed in a very amiable point of 
\fiew by Macready, the celebrated tragedian, in a lec- 
ture which he delivered to a Mechanics' Institute after 
he had retired from the stage, and which he published 
with several others, possessing great interest. The lec- 
turer gives an account of a visit paid by him to Canter- 
bury Cathedral, under the auspices of a Verger, who, by 
reading and observation, had acquired wonderful knowl- 
edge of architecture and mediaeval antiquities. Having 
introduced us to his guide, the ex-tragedian thus pro- 
ceeds : " He directed my attention to everything worthy 
of notice ; pointed out with the detective eye of taste 
the more recondite excellence of art throughout the 
building, and with convincing accuracy shed light on the 
historical traditions associated with it. It was opposite 
the western front that he stood with me before what 
seemed the site of a small shed or stall, then unoccu- 
pied, and said, ' Upon this spot a little barber's shop 
used to stand.' The last time Lord Tenterden came 
down here he brought his son Charles with him, and it 
was my duty, of course, to attend them over the Cathe- 
dral. When we came to this side of it he led his son up 
to this very spot and said to him, ' Charles, you see this 
litle shop ; I have brought you here on purpose to show it 
to you. In that shop your grandfather used to shave for 
a penny ! That is the proudest reflection of my life ! 
While you live never forget that, my dear Charles' And 
this man, the son of a poor barber, was the Lord Chief 
Justice of England. For the very reason, therefore, that 



LORD TENTERDEN. 343 

the chances of such success are rare, we should surely 
spare no pains in improving the condition of all whom 
accident may depress or fortune may not befriend." 

I have heard some complain, although I confess I my- 
self never saw any sufficient ground for the complaint, 
that after Abbott had been several years Chief Justice, 
he was not only a martinet in Court, but that he rigidly 
enforced the rules of evidence and of procedure when 
presiding at his own table. The following amusing anec- 
dote, recorded of him in the ' Quarterly Review,' I sus- 
pect is only entitled to the praise of being ben trovato : 
" He had contracted so strict and inveterate a habit of 
keeping himself and every body else to the precise mat- 
ter in hand, that once, during a circuit dinner, having 
asked a county magistrate if he would take venison, and 
receiving what he deemed an evasive reply: 'Thank 
you, my Lord, I am going to take boiled chicken ;' his 
Lordship sharply retorted, ' That, sir, is no answer to my 
question ; I ask you again if you will take venison, and 
I will trouble you to say jes or no, without further 
prevarication !' " 

At all times he showed an affectionate regard for the 
place of his early education: — "In 1817, the centenary 
commemoration of the school, he accepted an invita- 
tion to Canterbury, witnessed the examination of the 
scholars, addressed the successful candidates, and, after 
attending the usual service and sermon at the Cathedral, 
dined with the masters and members of the institution 
at the principal hotel of the city. In his speech after 
dinner he expressed himself with feeling and effect, and 
declared that to the free school of Canterbury he owed, 
under Divine blessing, the first and best means of his 
elevation in life. Nor was his gratitude confined to 
words. With a tasteful retrospect of the causes of his 
own success, he founded and endowed two annual prizes 
—the one for the best English essay, the other for the 
best Latin verse." ' 

Lest I should be misled by partiality or prejudice, I 
add, in justice to the memory of Lord Tenterden, 
sketches of him by very skillful artists. Thus is he 
portrayed by Lord Brougham : — 
' 2 Towns. 237. 



344 REIGN OF GEORGE III. 

" A man of great legal abilities, and of a reputation, 
though high, by no means beyond his merits. On the 
contrary, it may be doubted if he ever enjoyed all the 
fame that his capacity and his learning entitled him to. 
For he had no shining talents ; he never was a leader at 
the bar ; his genius for law was by no means of the depth 
and originality which distinguished Mr. Holroyd ; nor 
had he the inexhaustible ingenuity of Mr. Littledale, 
nor perhaps the singular neatness and elegance of Mr. 
Richardson. His style of arguing was clear and cogent, 
but far from brilliant ; his opinions were learned and 
satisfactory, without being strikingly profound ; his ad- 
vice, however, was always safe, although sometimes, 
from his habitual and extreme caution, it might be de- 
ficient in boldness or vigor. As a leader he was rarely 
and only by some extraordinary accident appeared, and 
this is a manner so little satisfactory to himself, that he 
peremptorily declined it whenever refusal was possible, 
for he seemed to have no notion of a leader's duty be- 
yond exposing the pleadings and the law of the case to 
the jury, who could not comprehend them with all his 
explanation. Although his reputation at the bar was 
firmly established for a long course of years, it was not 
till he became a Judge, hardly till he became Chief 
Justice, that his merits were fully known. It then ap- 
peared that he had a singularly judicial understanding, 
and even the defects which had kept him in the less 
ambitious walks of the profession — his caution, his aver- 
sion to all that was ' experimental, his want of fancy — 
contributed, with his greater qualities, to give him a very 
prominent rank indeed among our ablest Judges. One 
defect alone he had, which was likely to impede his pro- 
gress towards this eminent station ; but of that he was 
so conscious as to protect himself against it by constant 
and effectual precautions. His temper was naturally, 
bad ; it was hasty and it was violent, forming a marked 
contrast with the rest of his mind. But it was singular 
with what success he fought against this, and how he 
mastered the rebellious part of his nature. Indeed it 
was a study to observe this battle, or rather victory, for 
the conflict was too successful to be apparent on many 
occasions. On the bench it rarely broke out, but there 



LORD TENTERDEN. 345 

was observed a truly praiseworthy feature, singularly be- 
coming, in thedemeanorof a Judge. Whatever struggles 
with the advocate there might be carried on during the 
heat of a cause, and how great soever might be the 
asperity shown on either part, all passed away— all was 
even to the vestige of the trace of it, discharged from his 
mind, when the peculiar duty of the Judge came to be 
performed : and he directed the jury, in every particular, 
as if no irritation had ever passed over his mind in the 
course of the cause. Although nothing can be more 
manifest than the injustice of making the client suffer for 
the fault or the misfortune of his advocate — his fault, if 
he misconducted himself towards the Judge; his mis- 
fortune, if he unwittingly gave offense — yet, whoever has 
practiced at Nisi Prius, knows well how rare it is to find 
a Judge of an unquiet temper, especially one of an 
irascible disposition, who can go through the trial with- 
out suffering his course to be affected by the personal 
conflicts which may have taken place in the progress of 
the cause. It was, therefore, an edifying sight to observe 
Lord Tenterden, whose temper had been visibly affected 
during the trial (for on the bench he had not always the 
entire command of it, which we have described him as 
possessing while at the bar), addressing himself to the 
points in the cause, with the same perfect calmness and 
indifference with which a mathematician pursues the in- 
vestigation of an abstract truth, as if there were neither 
the parties nor the advocates in existence, and only bent 
upon the discovery and the elucidation of truth." 

The following discriminating praise and mild censure 
are meted out to him by Mr. Justice Talfourd, the author 
of "Ion": — 

" The chief judicial virtue of his mind was that of 
impartiality ; not mere independence of external in- 
fluence, but the general absence of tendency in the mind 
itself to take a part, or receive a bias. How beneficial 
this peculiarity must prove in the judicial investigation 
of the ordinary differences of mankind, is obvious ; yet 
in him it was little else than a remarkable absence of 
imagination, passion, and sympathy. In him the dis- 
position to single out some one object from others for 
preference — the power and the love of accumulating 



346 REIGN OF GEORGE III. 

associations around it and of taking an abstract interest 
in its progress, were wholly wanting. The spirit of 
partisanship, almost inseparable from human nature 
itself, unconsciously mingling in all our thoughts, and 
imparting interest to things else indifferent, is especially 
cherished by the habits and excitements of an advocate's 
profession, and can, therefore, seldom be wholly pre- 
vented from insinuating itself into the feelings of the 
most upright and honorable Judges. But Lord Tenter 
den, although long at the bar, had rarely exercised those 
functions of an advocate which quicken the pulse and 
agitate the feelings ; he had been contented with the 
fame of the neatest, the most accurate, and the most 
logical of pleaders ; and no more thought of trials in 
which he was engaged as awakening busy hopes and 
fears, than of the conveyances he set forth in his pleas as 
suggesting pictures of the country to which they related. 
The very exceptions to his general impartiality of mind, 
partook of its passionless and unaspiring character. In 
political questions, although charged with a leaning to the 
side of power, he had no master prejudices ; no sense of 
grandeur or gradation ; as little true sympathy with a 
high oppressor as with his victims. On the great trials 
of strength between the Government and the people, he 
was rarely aroused from his ordinary calmness ; and he 
never, like his predecessor, sought to erect an independent 
tyrannj- by which he might trample on freedom of his 
own proper wrong. He was " not born so high " in 
station, or in thought, as to become the comrade of 
haughty corruption. If seduced at all by power, it was 
in its humbler forms— the immunities of the unpaid 
magistracy and the chartered rights of small corporations, 
which found in him a congenial protector. If he had a 
preferable regard in the world, beyond the circle of his 
own family and friends, it was for these petty aristocracies, 
which did not repel or chill him. If he was overawed by 
rank, he was still more repelled by penury, the idea of 
which made him shiver even amidst the warmth of the 
Court of King's Bench, in which alone he seemed to live. 
His moral like his intellectual sphere was contracted ; 
it did not extend far beyond the decalogue ; it did not 
conclude to the country, but was verified by the record 



LORD TENTERDEN. 347 

His knowledge, not indeed of the most atrocious, but of 
the meanest parts of human nature, made him credulous 
of fraud ; a suggestion of its existence always impelled 
his sagacity to search it out ; and if conspiracy was the 
charge, and an attorney among the defendants, there 
were small chances of acquittal. The chief peculiarity 
and excellence of his decisions consist in the frequent 
introduction of the word ' reasonable ' into their terms. ' 
He so applied this word as in many instances to relax i 
the severity of legal rules, to mediate happily between 
opposing maxims, and to give a liberal facility to the 
application of the law by Judges and juries to the vary- 
ing circumstances of cases, which before had been brought 
into a single class. If he would not break through a rule 
for the greatest occasion, he was acute in discovering 
ways by which the right might be done without seeming 
to infringe it ; and his efforts to make technical dis- 
tinctions subservient to substantial justice were often 
ingenious and happy." 

I reserve, as a pleasing finale for this memoir. Lord 
Tenterden's ardent and unabated devotion to classical 
literature, which confers high distinction upon him, and 
is so creditable to our profession, — showing that the in- 
dulgence of such elegant tastes is consistent with a steady 
and long continued and successful application to abstruse 
juridical studies, and with the exemplary performance of 
the most laborious duties of an advocate and of a judge. 
Lord Eldon never opened a Greek or Latin author after 
leaving college, and Lord Kenyon could never construe 
one. Lord Tenterden in his busiest time would refresh 
himself from the disgust of the Libel Placitandi, or the 
Registrum Brevium, by reading a Satire of Juvenal, or a 
chorus of Euripides. He likewise kept up a familiar 
knowledge of Sakespeare, Milton, Dryden, and Pope, but 
he was little acquainted with the modern school of Eng- 
lish poets. When Sir James Scarlett on one occasion 
referred to the poetry of Southey and Wordsworth as 
familiar to the jury, Lord Tenterden observed, that "for 
himself he was bred in too severe a school of taste to 
admire such effusions." 

Although he had long ceased to make verses himself, 
a few years before his death his passion for this amuse 



348 REIGN OF GEORGE III. 

ment returned, and in the following letter to Sir Egerton 
Brydges, dated 15th September, 1830, he gives an in- 
teresting account of his " hobby.'' 

" I have always felt that it might be said that a Chief 
Justice and a peer might employ his leisure hours better 
than in writing nonsense verses about flowers. But I 
must tell you how this fancy of recommencing to hammer 
Latin metres after a cessation of more that thirty years 
began. Brougham procured for me from Lord Grenville 
a copy of some poems printed by him under the title of 
' Nugae,' chiefly his own, one or two, I believe, of Lord 
Wellesley's, written long ago, and a piece of very good 
Greek humor by Lord Holland. The motto in the title- 
page is four or five hendaecasyllabic lines by Fabricius. 
At the same time John Williams of the Northern Circuit, 
now the Queen's Solicitor General, who is an admirable 
scholar, sent me four or five Greek epigrams of his own. 
I had a mind to thank each of them, and found I could 
do so with great ease to myself in ten hendsecasyllables. 
This led me to compose two trifles in the same meter on 
two favorite flowers, and afterwards some others, now I 
think twelve verses in all, in different Horatian meters, 
and one, an Ovidian epistle, of which the subject is the 
Forget-me-Not. One of the earliest is an ode on the 
conservatory in the Alcaic metre, of which the last 
stanza contains the true cause and excuse of the whole, 
and this I will now transcribe : — 

' Sit fabulosis fas mihi cantibus 
Lenire curas ! Sit mihi fioribu5 

Mulcere me fessum, seneraque 
Carpere quosjuvenissolebam.' 

" You see I am now on my hobby, and you must be 
patient while I take a short ride. Another of the earliest 
is an ode in the Sapphic meter on the Convallaria 
Maialis, The Lily of the Valley. I am a great admirer 
of Linnaeus, and my verses contain many allusions, to 
his system, not, however, I trust, quite so luscious as 
Darwin's Loves of the Plants, which, I believe, were 
soon forgotten. I have not seen the book for many 
years. I have one little ode written in the present year 
on a plant called the Linnae Borealis, which, Sir J. Smith 
tells us, was a name given to it from its supposed re- 



LORD TENTERDEN. 349 

semblance to the obscurity of the early days of the 
great botanist. It is not common, and possesses no par- 
ticular attraction. Smith says it has sometimes been 
found on the Scottish mountains, and I have a plant 
sent to me last spring by Dr. Williams. I will send you 
a copy of this also. You must give me credit for the 
botanical correctness of the first part ; of the rest you 
can judge, and you may criticise as much as you please. 
There are three other meters of Horace on which I 
should like to write something, but what, or when, I 
know not. It is now high time to quit this subject." 

By the favor of the present Lord Tenterden, I have 
before me a copy of all the poems here referred to, and 
several more which the Chief Justice afterwards com- 
posed to cheer his decling days. From these I select a 
few for the gratification of my readers. It should be 
known that botany had been taken up by the Chief 
Justice late in life as a scientific pursuit, and that this 
gave the new direction to his metrical compositions 

DOMUS CONSERVATORIA. 

Haud nos, ut Urbem, Flora, per inclytam 
Olim Quirites, Te colimus Deam, 
Fictumve, coelatumve numen 
Mannoreis domibus locamus ; 

Quas impudicis cantibus ebria 
Lascivientiiin turba jocantium, 
Festis sulutatura donis, 
Saltibu:: et strepitu revisat. 

Sed rure ainenc Te vitrea excipit 
^des, remissis pervia solibus, 
Qua ridear imbres nivales 

Et gelidi? hyemem sub Arctis. 

Secura jam non !;cspitio minus 
Nostro foveris, sub Jove candidum 

Quam si benigno Tu Tarentum, aut 
Niliacum coieres Syenem. 

Cascis pererrat tramitibus domum 
Ardor, quietis Iseta laboribus 
Servire, jucundoque curas 
Auxiiio tenues levare. 

Ergo sub auris plurima non suis 
Ardentis Austri progenies viget, 
Neve Occidentales Eois 
Addere se socias recusant. 



350 REIGN OF GEORGE III. 

Herbseve, floresve, aut patiiuin dolent 
Liqttisse coelum, fervidus abstulit 
Si nauta, mercatorve prudens, 
Vel peregrina petens viator. 

Misit colendas ; Gentibus exteris 
Spectandus hospes : salvus ab sestubus 
Uliginosis, nubibusque 
Lethiferd gravidis aren^. 

Non tale monstrum, naribus igneos 
Spirans vapores, cessit Jasoni ; 
Nee tale donum saevientis 
Conjugis innocuam Creontis. 

Natam perassit : nee vagus Hercules 
Tam dira vicit, perdomuit licet 

Hydrasque, Centaurosque, clavo, et 
Semiferum vilidus Giganta. 

Sit fabulosis fas mihi cantibus 
Lenire curas ! Sit mihi floribus 
Mulcere me fessum, senemque 
Carpere quos juvenis solebam. 

Prid. Cal. yan. t8»9. 



GALANTHUS. 

Anni primitize, Bruma; Phoebique nivalis 

Pallida progenies, 
Frigoris atque gelu patiens quae caulibus albam 

Findis liumum teneris, 
Seu proprium de lacte Tibi, potiusve cadente 

De nive nomen habes, 
Te juvenesque senesque hilares agnoscimus ultra 

Auspiciuraque tuum. 
Tu monstras abituram hiemem, redituraque vemis 

Tempora laetitise ; 
Tu Jovis aspectus mutari, et nigra serenis 

Cedere fata mones ; 
Demittensque caput niveum, floresque pudicos 

Stipite de tereti, 
Nil altum moliri homines, sed sorte beatos 

Esse jubes humili ; 
Et tua blanditias juvenum nunc virgo suorum 

Accipit, ipsa lubens, 
Haud secus ac Zephyros si Sol Aurasque tepentei 

Duceret Oceano. 
Silicet hyberno plantis quae tempore florent 

Vis genialis inest, 
Atque illis miros intus Natura colores 

Sufficit, alma parens, 
iEthere sub gelido pecudum licet atque ferarum 

Langueat omne genus, 
Et Cytherea tremens, pallique informis agresti, 

Algeat ipsa'Venus, 
Maternoque puer vix tendere debilis arcum 

De gremio valeat. Prid. Cal. Fii. iSag. 



LORD TENTERDEN. 351 

CONVALLARIA MAIALIS. 

Quo pedes olim valunere, robur, 
Lsetus et mentis juvenalis ardor, 
Si tuo, dulcis, redeuuto curru, 
Maia redirent ; 

Qusererem inculti nemorosa runs, 
Impiger densos penetrare valles, 
Qui suos grati renovent sub umbrS 
Lilia floras. 

Ducat baud fallax odor insolentem, 
Et loquax flatu nimis aura grate, 
Abditam frustra sobolem recessu 
Prodet avito. 

Conditus molli foliorura amictu, 
Dum tener ventos timet atque solem, 
Fortior tandem gracili racemus 
Stipite surgit, 

Flosculis nutans oneratus albis ; 
Non ebur lucet, Pariumve marmor. 
Purius, nee quae decorat pruina 
Cana cupressos, 

Talis et pectus niveumque collum, 
Adveni viso, pudibunda texit 
Insulse virgo, leviterque cymbam ^ 
Littore trusit ; 

Voce sed leni facieque mota, 
Hospitem fido prius indicatum 
Somniis voti, magicas ad aedes 
Nescia duxit ; 

Quse diu, patris comes exulantis, 
"/allium saltus coluit quietos, 
Lasta si nigros roseo ligaret 
Flore capillos : 

Mox tamen tristi monitu parentis 
Territa, absentique timens, puella, 
Nobilis supplex, petere ipsa Regem 
Ausit et urbem. 

Otii lassum accipitrem canemque 
Seque captivum juvenem querentis 
Ef lacus dulces, Elenaraque molli 
Voce sonantis, 

Palluit cantus ; — adiit trementem 
Lene subsidens, generosus hospes, 
Simplici pluma, viridisque veste 
Notus, et ore. 

Et sa.%, quem tu petis, hie in arce 
Regius jam nunc, ait, est Jacobus ; 
Virgini nunquam gravis invocanti, 
Mitto timores : 



3S2 REIGN OF GEORGE III. 

Te manent intus pater, atque patre 
Charior ; nudis Procerum capillis 
Coetus exspectat, poteiisque opertum 
Noscere Regem ; 

Et vagi posth^c Equitis pericla 
Forsan, et suaves Elenas loquelas 
Et levem vates memori phaselum 
Carmine dicet. 

Cal. Mail, 1828. 

I have only further to state, that the Chief Justice 
left not a splendid, but a competent fortune to his 
family. He is now represented by his eldest son John, 
the second Lord Tenterden, a most amiable and ex- 
cellent man. As the title was worthily won, I trust that 
it may be as much respected as if he who first bore it 
had " come in with the CONQUEROR."